THE  LIBRARY 

OF 

THE  UNIVERSITY 

OF  CALIFORNIA 

LOS  ANGELES 

SCHOOL  OF  LAW 


SELECTION  OF  CASES 

ON 

THE  LAW  OF  PLEADING 

UNDER  MODERN  CODES 

COLLECTED  AND  ANNOTATED 

BY 

EDWARD  W.   HINTON 

'I  / 

PBOFESSOB  of   PtEADINQ  AND  PRACTICaB,   UNIVEBSITY  OF   CHICAGO 


SECOND  EDITION 


CHICAGO 

CALLAGHAN  &  COMPANY 
1922 


Copyright,  1922 

BY 

Callaghan  &  Company 


^ 

^ 

^ 


V 


PREFACE  TO  SECOND  EDITION 


Toward  the  close  of  the  eighteenth  century  the  courts  began 
to  recognize  that  the  later  development  of  the  common  law 
pleading  was  not  satisfactory.  The  ancient  theory  of  special 
pleading  leading  to  a  single  clear-cut  issue,  upon  which  both 
parties  came  prepared  for  trial,  had  been  displaced  by  the 
growth  of  the  general  issue,  until,  in  a  majority  of  the  actions, 
the  formal  issue  made  by  the  pleadings  gave  little  or  no  in- 
formation as  to  the  real  issues  which  would  be  disclosed  by  the 
evidence. 

In  England  an  attempt  was  made  to  improve  the  system  of 
pleading  by  the  adoption  of  the  Hilary  rules  in  1834,  but  with- 
out marked  success.  The  common  law  procedure  act  did  not 
remove  the  objections,  and  dissatisfaction  continued  until  the 
old  system  was  finally  supplanted  by  rifles  of  court  under  the 
Judicature  Act. 

In  the  United  States  the  same  unsatisfactory  conditions  pre- 
vailed in  the  actions  at  law. 

It  was  also  becoming  more  apparent  that  the  pleading  in 
chancery  was  unduly  complicated  and  prolix,  and  that  the 
<3umbersome  scheme  for  discovery,  which  was  largely  responsible 
for  the  peculiar  features  of  that  system,  had  largely  outlived 
its  usefulness. 

Agitation  for  reform  in  New  York  led  to  a  proposal  to  unify 
the  two  systems  of  pleading,  which  was  finally  embodied  in 
the  Field  Code  of  1848,  whose  provisions  were  copied,  in  sub- 
stance at  least,  in  nearly  all  the  later  codes. 

Whether  the  code  is  regarded  as  a  mere  statutory  modifica- 
tion of  the  existing  systems  or  as  a  complete  substitute,  in  some 
respects  closely  resembling  one  or  the  other  of  the  older  systems, 
it  is  clear  that  the  statutory  language  left  much  for  construc- 
tion, and  that  the  system  of  code  pleading  as  it  exists  today 
is  the  product  of  judicial  construction  during  the  last  seventy 


I*    'V  *^  --  ^-^       V  ■    ^      •      •> 


111 


iV  PREFACE. 

years  and  can  be  understood  only  through  a  study  of  the  cases 
which  have  made  it. 

It  is  the  purpose  of  this  collection  to  furnish  the  material  for 
a  study  of  this  process  of  construction  as  applied  to  the  more 
important  provisions.  For  this  reason  many  of  the  earlier 
cases  have  been  used.  Some  of  them  do  not  represent  the  pres- 
ent state  of  the  law,  but  they  have  affected  its  development.  The 
first  edition  of  this  collection  was  prepared  soon  after  the  ed- 
itor began  teaching  the  subject.  The  pressing  need  for  some 
material  to  meet  the  needs  of  classes  which  had  become  too  large 
for  the  library  facilities  led  to  undue  haste  in  its  preparation. 
Under  the  conditions  it  is  not  surprising  that  mistakes  were 
made. 

Some  fifteen  years'  experience  in  teaching  has  convinced  the 
editor  that  some  topics  were  overtreated  and  others  inadequately 
covered  and  that  a  number  of  the  cases  were  not  well  chosen. 
The  purpose  of  the  present  revision  is  to  remedy  these  defects, 
so  far  as  possible,  and  to  bring  the  work  more  in  harmony  with 
the  later  development  of  the  subject.  Since  the  Equity  Rules 
of  1912  have  placed  the  equity  pleading  in  the  federal  courts 
largely  on  the  code  basis,  the  more  important  of  these  rules 
have  been  included  in  the  notes.  In  general,  notes  have  been 
added  wherever  it  seemed  worth  while ;  but  no  attempt  has  been 
made  to  compete  with  the  digests  and  encyclopedias  in  the  col- 
lection of  any  considerable  number  of  cases  in  accordance  with, 
or  contrary  to,  the  principal  cases. 

The  arrangement  of  topics  in  the  main  follows  the  first  edi- 
tion, but  some  explanation  of  the  few  changes  may  be  helpful. 

The  section  on  splitting  and  consolidation  of  demands,  which 
takes  up  the  elements  going  to  make  up  a  single  cause  of  action, 
and  the  equity  view  as  to  various  sorts  of  relief  in  a  single  ac- 
tion, has  been  placed  at  the  beginning  as  throwing  light  on 
extravagant  statements  found  in  some  of  the  earlier  cases  as 
to  the  effect  of  the  one  form  of  action  in  fusing  law  and  equity. 

Much  of  the  material  in  the  section  on  the  one  form  of  action, 
dealing  as  it  does  with  the  sufficiency  of  a  complaint,  failing  to 
state  the  cause  of  action  attempted  to  be  stated,  but  good  on 
some  other  theory,  and  wdth  some  of  the  broader  phases  of  vari- 
ance, might  well  have  been  included  in  the  chapter  on  the  com- 
plaint.   It  seemed  advisable,  however,  to  develop  these  questions 


PREFACE.  V 

separately  and  at  an  earlier  stage,  as  laying  the  necessary 
foundation  for  the  chapter  on  parties. 

The  chapter  on  demurrers  has  been  placed  immediately  after 
the  chapter  on  the  complaint  because  that  seemed  the  more 
natural  order. 

Within  the  sections,  the  ca^es  have  been  arranged  with  some 
regard  for  chronology  where  practicable,  and  in  some  instances 
older  cases  have  been  added  or  substituted  because  they  seemed 
more  valuable  for  the  purpose  of  study. 

The  first  edition  included  more  material  than  could  be  used 
in  the  time  ordinarily  available  for  such  a  course,  and  hence  the 
present  revision  has  been  considerably  reduced  in  bulk. 

It  is  the  hope  of  the  editor  that,  as  revised,  this  collection 
may  prove  more  helpful  in  working  out  some  of  the  perplexing 
problems  in  this  branch  of  the  law. 

E.   W.    HiNTON. 

University  of  Chicago 
July,  1922 


Digitized  by  tine  Internet  Archive 

in  2008  witin  funding  from 

IVIicrosoft  Corporation 


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TABLE   OF   CONTENTS 


CHAPTER  I. 

PAGE 

ACTIONS,  1 

Section  1.     Splitting  and  Consolidation  of  Demands 3 

Section  2.     One  Form  of  Action 39 

Section  3.     Special  Proceedings    104 

CHAPTER  II. 

PARTIES.  122 

Section  1.     Real  Party  in  Interest 122 

Section  2.     Joinder  of  Parties 166 

I.  Plaintiffs    170 

II.  Defendants 215 

CHAPTER  III. 


Section  1. 


Section  2. 
Section  3. 


The  Complaint.  268 

The  Pacts  Constituting  the  Cause  of  Action. . .  271 

I.  Laiv  and  Fact 271 

II.  The  Facts  to  he  Stated 309 

The  Demand  for  Judgment 374 

Joinder  of  Causes  of  Action 388 

I.  Causes  that  May  he  Joined 388 

II.  The  Separate  Statement 418 


CHAPTER  IV. 


Demurrers.  430 

Section  1.     Admission  by  Demurrer 432 

Section  2.     Grounds  of  Demurrer 446 

Section  3.     Effect  on  Prior  Pleadings 464 

vii 


VIU 


TABLE  OF  CONTENTS. 

CHAPTER  V. 


PAGE 

The  Answer.  469 

Section  1.     General  and  Specific  Denials 471 

Section  2.     New  Matter    506 

I.  In  Abatement   506 

II.  In  Discharge  or  Excuse 519 

III.  By  Way  of  Equitable  Defense 576 

IV.  By  Way  of  Counterclaim 621 

Section  3.     Several  Defenses   641 

CHAPTER  VI. 


The  Reply.  663 

Section  1.     When  Necessary    665 

Section  2.     New  Assignment   672 

Section  3.     Departure    674 


CASES  ON  CODE  PLEADING 


CHAPTER  I. 
ACTIONS. 

Code  op  Civil  Procedure  of  New  York.* 


§  3333.  The  word  "action,"  as  used  in  the  New  Revision  of 
the  Statutes,  when  applied  to  judicial  proceedings,  signifies  an 
ordinary  prosecution,  in  a  court  of  justice,  by  a  party  against 


1  The  first  New  York  Code  of 
Procedure  was  drafted  by  a  com- 
mission composed  of  David  Dudley 
Field,  Arphaxed  Loomis  and  David 
Graham,  and  adopted  by  the  Leg- 
islature in  1848.  Soon  afterwards, 
the  Commission  reported  a  revised 
draft  which  was  adopted  April  11, 
1849.  From  time  to  time  various 
amendments  were  made  until  1876, 
when  the  code  was  revised,  and 
the  sections  renumbered.  In  1920, 
the  Code  of  1876,  with  various 
subsequent  amendments,  was  sup- 
planted by  the  Civil  Practice  Act, 
which,  however,  retains  many  of 
the  original  code  provisions.  The 
Code  of  1849,  with  the  amend- 
ments adopted  shortly  afterward, 
has  served  as  a  model  for  the 
Codes  of  the  following  states  and 
territories: 

Alaska,  (1900);  Arizona,  (1864); 
Arkansas,  (1868);  California, 
(1850);    Colorado,    (1877);     (since 


supplanted  by  an  Act  empowering 
the  Supreme  Court  to  make  rules 
regulating  pleading,  etc.);  Con- 
necticut, (1879);  Florida,  (1870); 
(since  supplanted  by  modified  com- 
mon law);  Indiana,  (1852);  Iowa, 
(1851);  Idaho,  (1864);  Kansas, 
(1859);  Kentucky,  (1851);  Min- 
nesota, (1851);  Missouri,  (1849); 
Montana,  (1865);  Nebraska, 
(1855);  Nevada,  (1860);  New 
Mexico,  (1897);  North  Carolina, 
(1868);  North  Dakota,  (1862); 
Ohio,  (1853);  Oklahoma,  (1890); 
Oregon,  (1854);  South  Carolina, 
(1870);  South  Dakota,  (1862); 
Utah,  (1870) ;  Washington,  (1854) ; 
Wyoming,  (1869);  Wisconsin, 
(1856). 

The  New  York  Code  has  also 
served  as  a  model  for  a  number  of 
the  Federal  Equity  Rules  of  1912, 
especially  those  dealing  with  the 
parties. 

The  various  codes  based  on  the 


Actions. 


[Chap.  I. 


another,  for  the  enforcement  or  protection  of  a  right,*  the  re- 
dress or  prevention  of  a  wrong,  or  the  punishment  of  a  public 
offence. 


New  York  Code,  while  varying 
more  or  less  from  the  original, 
have  in  most  instances  preserved 
the  substance,  and  frequently  the 
language,  of  the  more  important 
provisions.  Lack  of  space  renders 
a  comparison  impracticable  here, 
but  a  good  summary  will  be  found 
in  Professor  Hepburn's  "Develop- 
ment of  Code  Pleading." 

Pleading  in  the  Federal  Courts 
in  actions  at  law  is  governed  by 
the  State  Code  under  the  terms 
of  the  Conformity  Act,  (Act  of 
June  1,  1872,  U.  S.  Rev.  Stat. 
§  914,  U.  S.  Comp.  Stat.  1911 
§   1537): 

"The  practice,  pleadings,  and 
forms  and  modes  of  proceeding 
in  civil  causes,  other  than  equity 
and  admiralty  causes,  in  the  (cir- 
cuit and)  district  courts,  shall 
conform,  as  near  as  may  be,  to 
the  practice,  pleadings,  and  forms 
and  modes  of  proceeding  existing 
at  the  time  in  like  causes  in  the 
courts  of  record  of  the  State 
within  which  such  (circuit  or) 
district  courts  are  held,  any  rule 
of  court  to  the  contrary  notwith- 
standing." 

Pleading  in  the  Federal  Courts 
in  equity  cases  is  governed  by 
the  Equity  Rules  of  1912,  (198 
Fed.  Rep.  —  Appendix),  adopted 
by  the  Supreme  Court  of  the 
United  States  under  the  authority 
of  U.  S.  Rev.  Stat.  §  917,  U.  S. 
Comp.  Stat.  §  1543. 

2  "It  is  because  rights  exist 
and  because  they  are  sometimes 
violated,  that  remedies  are  neces- 
sary.    The   object  of  all  remedies 


is  the  protection  of  rights.    Rights 
are  protected  by  means  of  actions 
or   suits.     The  term  "remedy"  is 
applied    either    to    the    action    or 
suit    by    means    of   which    a   right 
is   protected,   or  to   the   protection 
which    the    action   or   suit    affords. 
An  action  may  protect  a  right  in 
three    ways,    namely,    by    prevent- 
ing  the    violation    of   it,    by   com- 
pelling a  specific   reparation  of  it 
when  it  has  been  violated,  and  by 
compelling      a      compensation      in 
money  for  a  violation  of  it.     The 
term   "remedy"   is   strictly   appli- 
cable    only     to     the     second     and, 
third  of  these  modes  of  protecting 
rights;  for  remedy  literally  means 
a    cure, — not     a     prevention.       As 
commonly    used    in    law,    however, 
it    means    prevention    as    well    as 
cure;    and    it    will    be    so    used    in 
this    paper.      In    equity    the    term 
"relief"    is    commonly    used    in- 
stead   of   "remedy";    and   though 
relief    is    a    much    more    technical 
term  than  remedy,  it  has  the  ad- 
vantage   of    being    equally    appli- 
cable to  all  the  different  modes  of 
protecting   rights. 

"Though  remedies,  like  rights, 
are  either  legal  or  equitable,  yet 
the  division  of  remedies  into  le- 
gal and  equitable  is  not  co-ordi- 
nate with  the  corresponding  divi- 
sion of  rights;  for,  though  the 
remedies  afforded  for  the  protec- 
tion of  equitable  rights  are  all 
equitable,  the  remedies  afforded 
for  the  protection  of  legal  rights 
may  be  either  legal  or  equitable, 
or  both."  Langdell,  Survey  of 
Equity  Jurisdiction,  1  Harvard 
Law  Rev.  111. 


Sec.  1.] 


Splitting  and  Consolidation. 


§  3334.    Every  other  prosecution  by  a  party,  for  either  of  the 
purposes  specified  in  the  last  section,  is  a  special  proceeding. 


Section  1.    Splitting  and  Consolidation  op  DEiiANDS.' 

SECOR  V.  STURGIS. 

Court  of  Appeals  of  New  York,  1858.    16  N.  Y.  548. 
This  was  an  action  on  a  bond  given  to  obtain  the  release  of 


8  The  Code  contains  the  follow- 
ing provisions  for  the  joinder  of 
distinct  causes  of  action  in  one 
complaint: 

"Where  the  complaint  sets  forth 
two  or  more  causes  of  action,  the 
statement  of  the  facts  constitut- 
ing each  cause  of  action  must  be 
separate  and  numbered." — N.  Y. 
Code   Civ.   Proc,   Sec.  483. 

"The  plaintiff  may  unite  in  the 
same  complaint,  two  or  more 
causes  of  action,  whether  they 
are  such  as  were  formerly  denom- 
inated legal  or  equitable,  or  both, 
where  they  are  brought  to  recover 
as  follows: 

1.  Upon  contract,  express  or 
implied. 

2.  For  personal  injuries,  except 
libel,  slander,  criminal  conversa- 
tion or  seduction. 

3.  For  libel   or  slander. 

4.  For  injuries  to  real  property. 

5.  Real  property,  in  ejectment, 
with  or  without  damages  for  the 
withholding  thereof. 

6.  For  injuries  to  personal  prop- 
erty. 

7.  Chattels,  with  or  without 
damage  for  the  taking  and  deten- 
tion thereof. 

8.  Upon  claims  against  a 
trustee,  by  virtue  of  a  contract, 
or  by  operation  of  law. 


9.  Upon  claims  arising  out  of 
the  same  transaction,  or  transac- 
tions connected  with  the  same 
subject  of  action,  and  not  included 
within  one  of  the  foregoing  sub- 
divisions   of   this   section. 

10.  For  penalties  incurred  un- 
der the  fisheries,  game  and  forest 
law. 

But  it  must  appear,  upon  the 
face  of  the  complaint,  that  all  the 
causes  of  action,  so  united,  be- 
long to  one  of  the  foregoing  sub- 
divisions of  this  section;  that 
they  are  consistent  with  each 
other;  and,  except  as  otherwise 
prescribed  by  law,  that  they  af- 
fect all  the  parties  to  the  action; 
and  it  must  appear  upon  the  face 
of  the  complaint,  that  they  do  not 
require  different  places  of  trial." 
— N.  Y.  Code  Civ.  Proc,  Sec.  484. 

The  problem  presented  in  this 
section,  however,  is  not  what 
causes  of  action  may  be  joined 
under  the  foregoing  provision,  a 
matter  treated  hereafter  in  the 
chapter  on  the  complaint,  but 
rather  what  make  up  a  single 
cause  of  action  within  the  rule 
against  splitting  an  indivisible 
demand,  and  what  demands, 
though  possibly  severable,  may  be 
embraced  as  items  of  damage  or 
otherwise,  in  what  may  be  treated 
as  one  cause  of  action. — Ed. 


4  Actions.  [Chap.  I. 

a  vessel  from  an  attachment  issued  in  favor  of  the  plaintiffs  on 
an  account  for  materials  and  supplies.  The  complaint  alleged 
that  the  sum  of  $521.15  was  due  plaintiffs  for  materials  in  re- 
pairing and  equipping  the  vessel,  and  the  nonpayment  of  the 
same  as  a  breach  of  the  conditions  of  the  bond.  The  answer  set 
up  a  former  recovery  for  the  same  matters  in  the  U.  S.  District 
Court.  The  evidence  taken  before  a  referee  showed  that  the 
plaintiffs  carried  on  the  business  of  ship  carpenters  and  also 
that  of  ship  chandlers,  and  that  separate  accounts  were  kept 
and  separate  bills  rendered  in  each  branch  of  the  business.  That 
the  attachment  was  brought  on  the  account  for  supplies  fur- 
nished from  the  ship-chandlery  branch  of  the  business,  and  that 
the  former  recovery  was  based  on  an  account  for  labor  and  ma- 
terial furnished  by  the  ship-carpentery  branch.  Judgment  was 
entered  on  the  report  in  favor  of  the  plaintiffs,  and  the  defend- 
ants appealed.* 

Strong,  J.  It  is  not  controverted  that  the  account,  the 
amount  of  which  is  sought  to  be  recovered  in  this  action,  was 
due  to  the  plaintiffs,  and  a  lien  on  the  vessel,  at  the  time  of  the 
application  for  the  attachment,  and  also  at  the  time  of  the  ex- 
ecution of  the  bond  on  which  this  action  is  founded ;  but  it  is 
insisted  that  the  said  account,  and  the  account  for  which  judg- 
ment was  recovered  in  the  district  court  of  the  United  States, 
together,  constituted  a  single  cause  of  action,  and  that  the  judg- 
ment for  part  of  it  is  a  bar  to  a  recovery  in  this  action  for  the 
residue.  The  answer  does  not  in  express  terms,  allege  that  the 
cause  of  action  in  the  suit  in  the  district  court  was  the  same 
as  that  in  the  present  suit,  but  it  was  treated  in  the  reply  as 
containing  substantially  that  allegation,  and  must  therefore  be 
so  regarded  by  the  court.  It  was  essential,  in  order  to  present 
the  question  raised,  that  the  identity  of  the  cause  of  action  in 
the  different  suits  should,  in  some  form,  be  averred  in  the  an- 
swer.    (3  Chit.  PI.  928-9 ;  Phillips  v.  Berick,  16  Johns.  137,  140.) 

The  principle  is  settled  beyond  dispute  that  a  judgment  con- 
cludes the  rights  of  parties  in  respect  of  the  cause  of  action 
stated  in  the  pleadings  on  which  it  is  rendered,  whether  the  suit 
embraces  the  whole  or  only  part  of  the  demand  constituting 
the  cause  of  action.  It  results  from  this  principle,  and  the  rule 
is  fully  established,  that  an  entire  claim,  arising  either  upon  a 

4  statement  condensed  and  parts  of  the  opinion  omitted. 


Sec.  1.]  Splitting  and  Consolidation.  5 

contract  or  from  a  wrong,  cannot  be  divided  and  made  the  sub- 
ject of  several  suits ;  and  if  several  suits  be  brought  for  different 
parts  of  such  a  claim,  the  pendency  of  the  first  may  be  pleaded 
in  abatement  of  the  others,  and  a  judgment  upon  the  merita 
in  either  will  be  available  as  a  bar  in  the  other  suits.  (Far- 
rington  v.  Payne,  15  John.  432 ;  Smith  v.  Jones,  id.  229 ;  Philips 
V.  Berick,  16  Id.  137 ;  Miller  v.  Covert,  1  Wend.  487 ;  Guernsey 
V.  Carver,  8  id.  492 ;  Stevens  v.  Lockwood,  13  id.  644 ;  Colvin  v. 
Corwin,  15  id.  557 ;  Bendeniagle  v.  Cocks,  19  id.  207,  and  cases 
there  cited.)  But  it  is  entire  claims  only  which  cannot  be  di- 
vided within  this  rule,  those  which  are  single  and  indivisible  in 
their  nature.  The  cause  of  action  in  the  different  suits  must  be 
the  same.  The  rule  does  not  prevent,  nor  is  there  any  principle 
which  precludes,  the  prosecution  of  several  actions  upon  several 
causes  of  action.  The  holder  of  several  promissory  notes  may 
maintain  an  action  on  each ;  a  party  upon  whose  person  or  prop- 
erty successive  distinct  trepasses  have  been  committed  may 
bring  a  separate  suit  for  every  trepass;  and  all  demands,  of 
whatever  nature,  arising  out  of  separate  and  distinct  transac- 
tions, may  be  sued  upon  separately.  It  makes  no  difference 
that  the  causes  of  action  might  be  united  in  a  single  suit;  the 
right  of  the  party  in  whose  favor  they  exist  to  separate  suits 
is  not  affected  by  that  circumstance,  except  that  in  proper  cases, 
for  the  prevention  of  vexation  and  oppression,  the  court  will 
enforce  a  consolidation  of  the  actions. 

It  is  not,  as  will  be  seen  by  the  cases,  always  easy  to  deter- 
mine whether  separate  items  of  claim  constitute  a  single  or  sep- 
erate  cause  of  action ;  and  this  difficulty,  connected  with  neglect, 
in  some  instances,  of  proper  attention  to  the  principle  of  the 
rule  under  consideration,  has  led  to  some  loose  expressions  and 
confusion  in  the  books  on  this  subject.  Farrington  v.  Payne 
was  a  plain  case  of  an  indivisible  cause  of  action.  A  bed  and 
bed  quilts  were  taken  at  the  same  time,  and  by  the  same  act,  and 
a  recovery  in  trover  for  the  quilts  was  held  a  bar  to  a  recovery 
in  trover  for  the  bed.  In  Smith  v.  Jones,  actions  were  brought 
for  goods  sold  and  delivered,  the  plaintiff,  in  one,  claiming  to 
recover  for  one  barrel  of  potatoes,  and  in  the  other  for  two  bar- 
rels of  the  same  article,  all  sold  at  the  same  time.  The  court 
held  that  the  demand  could  not  be  divided  into  separate  suits. 
This  was  also  a  plain  case  of  one  cause  of  action.  Miller  v. 
Covert,  in  wluch  the  same  rule  was  applied,  was  a  case  of  a  sale 


6  Actions.  [Chap.  I. 

of  hay,  under  a  contract,  delivered  in  parcels.     The  demand 
was  held  to  be  entire  and  indivisible. 

In  Guernsey  v.  Carver,  the  plaintiff  declared  on  a  book  ac- 
count consisting  of  items  of  merchandise  delivered  between  the 
20th  of  July  and  the  27th  of  August,  1828,  amounting  to  $2.35. 
The  defendant  pleaded  a  former  suit  for  the  same  identical 
cause  and  causes  of  action.  It  was  proved  in  the  Common  Pleas 
that  the  plaintiff  had  an  account  against  the  defendant,  con- 
sisting of  twenty  different  articles  of  merchandise,  delivered  on 
fourteen  different  days  between  the  4th  of  June  and  the  27th  of 
August,  1828,  amounting  to  between  $5  and  $6;  that  he  com- 
menced a  suit  against  the  defendant,  and  exhibited  an  account 
of  items  delivered  between  the  first  of  June,  and  the  19th  of 
July,  1828,  amounting  to  $2.74,  that  the  defendant  pleaded  a 
tender  in  such  suit,  and  obtained  judgment  for  costs.  The 
plaintiff  then  sued  for  the  balance  of  such  account,  viz.,  for 
items  delivered  between  the  20th  of  July  and  the  27th  of  Au- 
gust. The  common  pleas  decided  that  on  a  running  account, 
where  no  special  contract  was  made  at  the  commencement  of 
the  account,  and  where  items  have  been  delivered  on  such  ac- 
count at  different  times,  without  any  intermediate  agreement, 
each  separate  delivery  formed  a  separate  and  distinct  cause 
of  action,  and  that  separate  suits  might  be  maintained  on  each 
separate  delivery;  and  the  plaintiff  recovered  judgment.  On 
appeal  to  the  supreme  court  the  judgment  was  reversed.  The 
court,  by  Nelson,  J.,  after  stating  that  it  was  settled  in  that 
court  that  if  a  plaintiff  bring  an  action  for  a  part  only  of  an 
entire  and  indivisible  demand,  the  judgment  in  that  action  is 
a  conclusive  bar  to  a  subsequent  suit  for  another  part  of  the 
same  demand,  says:  "This  case  comes  within  the  reason  and 
spirit  of  that  principle.  The  whole  account  being  due  when  the 
first  suit  was  brought,  it  should  be  viewed  in  the  light  of  an 
entire  demand,  incapable  of  division,  for  the  purpose  of  pros- 
ecution. The  law  abhors  a  multiplicity  of  suits.  According  to 
the  doctrine  of  the  court  below,  a  suit  might  be  sustained,  after 
the  whole  became  due,  on  each  separate  item  delivered,  and  if 
any  division  of  the  account  is  allowable  it  must  no  doubt  be 
carried  to  that  extent.  Such  a  doctrine  would  encourage  in- 
tolerable oppression  upon  debtors,  and  be  a  just  reproach  upon 
the  law.  The  only  just  and  safe  rule  is  to  compel  the  plaintiff, 
on  an  account  like  the  present,  to  include  the  whole  of  it  due 


Sec.  1.]  Splitting  and  Consolidation.  7 

in  a  single  suit."  The  reasoning  of  the  learned  justice  would 
make  every  account  consisting  of  different  items,  the  whole  of 
which  is  due,  an  entire  demand  incapable  of  division  for  the 
purpose  of  prosecution  irrespective  of  every  other  consideration. 
It  excludes  the  idea  that  it  is  necessary  the  claims  should  have 
arisen  out  of  a  single  transaction,  or  be  connected  together  by 
contract.  This,  in  my  opinion,  is  carrying  the  doctrine  in  ques- 
tion far  beyond  its  just  limits.  Stevens  v.  Lockwood  was  a  case 
similar  to  the  last,  and  decided  upon  similar  views.  These  cases 
may  have  been  rightly  decided,  but  I  cannot  assent  to  all  the 
reasons  given  for  the  decisions. 

In  Colvin  v.  Corwin,  two  suits  were  brought  for  lottery  tickets 
sold  the  defendant.  On  the  trial  of  the  first  the  defendant  ad- 
mitted he  had  bought  the  tickets  alleged  to  have  sold  to  him, 
and  judgment  was  rendered  for  the  plaintiff.  The  judgment 
was  set  up  as  a  bar  in  the  second  suit,  and  on  the  trial  it  ap- 
peared that  the  tickets  claimed  in  the  suits  were  delivered  to 
the  defendant  by  two  different  agents  of  the  plaintiff,  at  dif- 
ferent offices  occupied  by  them,  at  different  times,  and  it  was 
held  by  the  Supreme  Court  that  the  previous  judgment  was  a 
bar  to  a  recovery.  It  is  manifest  that  this  decision  rests  on  no 
sound  principle,  and  it  is  not  law.  A  plainer  case  of  distinct 
independent  causes  of  action  could  hardly  be  presented.  *  *  * 
The  true  distinction  between  demands  or  rights  of  action 
which  are  single  and  entire,  and  those  which  are  several  and 
distinct  is,  that  the  former  immediately  arise  out  of  one  and  the 
same  act  or  contract,  and  ihe  latter  out  of  different  acts  or  con- 
tracts. Perhaps  as  simple  and  safe  a  test  as  the  subject  admits 
of,  by  which  to  determine  whether  a  case  belongs  to  one  class  or 
the  other,  is  by  inquiring  whether  it  rests  upon  one  or  several 
acts  or  agreements.  In  the  case  of  torts,  each  trespass,  or  con- 
version, or  fraud,  gives  a  right  of  action,  and  but  a  single  one, 
however  numerous  the  items  of  wrong  or  damage  may  be ;  in  re- 
spect to  contracts,  express  or  implied,  each  contract  affords  one 
and  only  one  cause  of  action.  The  case  of  a  contract  containing 
several  stipulations  to  be  performed  at  different  times  is  no  ex- 
ception ;  although  an  action  may  be  maintained  upon  each  stip- 
ulation as  it  is  broken,  before  the  time  for  the  performance  of 
the  others,  the  ground  of  action  is  the  stipulation  which  is  in 
the  nature  of  a  several  contract.  Where  there  is  an  account  for 
goods  sold,  or  labor  performed,  where  money  has  been  lent  to 


8  Actions.  [Chap.  I. 

or  paid  for  the  use  of  a  party  at  different  times,  or  several  items 
of  claim  spring  in  any  way  from  contract,  whether  one  only  or 
separate  rights  of  action  exist,  will,  in  each  case,  depend  upon 
whether  the  case  is  covered  by  one  or  by  separate  contracts. 
The  several  items  may  have  their  origin  in  one  contract,  as  on 
an  agreement  to  sell  and  deliver  goods,  or  perform  work,  or  ad- 
vance money;  and  usually,  in  the  case  of  a  running  account,  it 
may  be  fairly  implied  that  it  is  in  pursuance  of  an  agreement 
that  an  account  may  be  opened  and  continued,  either  for  a  def- 
inite period  or  at  the  pleasure  of  one  or  both  of  the  parties.  But 
there  must  be  either  an  express  contract,  or  the  circumstances 
must  be  such  as  to  raise  an  implied  contract,  embracing  all  the 
items,  to  make  them,  where  they  arise  at  different  times,  a  single 
or  entire  demand  or  cause  of  action. 

Applying  this  test  to  the  present  case,  it  is  very  clear  that  the 
two  accounts  did  not  constitute  an  entire  claim ;  but,  on  the  con- 
trary, that  they  were  several  and  formed  two  several  causes  of 
action.  The  business  of  the  plaintiffs  consisted  of  two  branches, 
which  were  designed  to  be  and  were  kept  entirely  distinct,  in 
each  of  which  one  of  the  accounts  was  made,  and  an  arrange- 
ment was  entered  into  under  which  one  of  the  accounts  arose 
anterior  to  the  opening  of  the  other  account.  Here  was  no  ex- 
press contract  connecting  the  two  accounts;  and  the  facts,  in- 
stead of  warranting  the  presumption  of  such  a  contract,  show 
that  separate  agreements  only,  one  in  regard  to  each  account, 
were  intended.^    •    «    * 

•        Judgment  affirmed. 


BOYCE  V.  CHRISTY. 
Supreme  Court  of  Missouri,  1870.    47  Mo.  70. 

Bliss,  Judge,  delivered  the  opinion  of  the  court. 

The  plaintiff,  formerly  an  apprentice  of  defendant,  some  six 
years  after  he  had  arrived  at  majority,  brought  suit  upon  the 
indenture.     The  statute  only  allows  such  suits  to  be  brought 

BFor    a    collection    of    the    later      trie   Co.,   134  la.  665,   13  L.  E.  A 
cases   on  this  point,  see  Williams-       (N.   S.)    529,    (1907),   annotated. 
Abbott  Electric  Co.  v.  Model  Elec- 


Sec,  1.]  Splitting  and  Consolidation.  9 

within  two  years  after  the  apprentice  comes  of  age,  and  for  that 
reason  the  petition  was  demurrable;  for  it  is  well  settled  that 
when  the  statute  creates  a  bar  by  lapse  of  time,  and  the  petition 
shows  that  the  time  has  elapsed,  the  defense  may  be  made  by 
demurrer.  (State  v.  Bird,  22  Mo.  470;  McNair  v.  Lott,  25  Mo. 
182;  Van  Hook  v.  Whitlock,  7  Paige,  373.)  But  the  defendant 
failed  to  avail  himself  of  the  statute,  either  by  demurrer  or 
answer,  and  this  being  an  action  upon  contract,  its  benefit  was 
waived.  (Benoist  v.  Darby,  12  Mo.  196;  Sturgis  v.  Benton,  8 
0.  St.  215;  Ang.  Lim.  §  285.) 

The  petition  counts  upon  the  indenture  and  charges  various 
breaches  in  the  form  of  independent  counts,  and  the  plaintiff 
obtained  a  general  verdict  of  $400,  upon  which  judgment  was 
rendered.  Under  our  system  such  general  verdict  is  erroneous, 
and  judgment  should  have  been  arrested.  Each  count  calls  for 
a  separate  judgment,  and  the  rule  under  common  law  pleadings 
cannot  apply  to  petitions  under  our  statute.  (Mooney  v.  Ken- 
nett,  19  Mo.  551 ;  Clark's  Admx.  v.  Hann.  &  St.  J.  R.  R.,  36  Mo. 
202;  Pitts  V.  Fugates,  Adm'x,  41  Mo.  405;  State  v.  Dulle,  45 
Mo.  269.) 

The  plaintiff  asks  that  the  petition  be  treated  as  containing 
but  one  count,  notwithstanding  its  form,  inasmuch  as  the  in- 
denture was  but  a  single  contract.  We  might,  perhaps,  get  over 
the  form  if  there  were  really  but  one  cause  of  action  in  the  peti- 
tion. But  the  breaches  were  separate  and  distinct ;  one  charging 
a  neglect  in  sending  the  apprentice  to  school ;  another  in  paying 
him  money;  others  in  other  things.  Their  investigation  in- 
volved separate  and  independent  inquiries  and  findings  on  the 
part  of  the  jury,  and  they  should  be  held  to  be  independent 
causes  of  action,  although  arising  out  of  the  same  contract.  The 
authorities  upon  this  point  are  not  altogether  uniform,  although 
there  is  a  preponderance  in  favor  of  our  view.  The  State  v. 
Davis,  35  Mo.  406,  was  an  action  upon  a  sheriff's  bond,  and 
the  court  held  that  the  various  breaches  constituted  but  one 
cause  of  action.  This  point  in  the  case  was  not  noted  in  our 
only  digest,  and  its  decision  failed  to  be  considered  by  us  when 
the  question  was  subsequently  raised.  In  Howard  v.  Clark,  43 
Mo.  347,  and  in  the  State  v.  Dulle,  45  Mo.  271,  the  opposite  view 
is  held,  and  seems  to  us  to  be  well  founded. 

The  other  judges  concurring,  the  judgment  is  reversed  and 
the  cause  is  remanded. 


10  Actions.  [Chap.  I. 

BURRITT  V.  BELFY. 

Supreme  Court  of  Connecticut,  1879.    47  Conn.  323. 

LooMis,  J.^  Under  a  parol  lease  for  a  term  of  years,  the  de- 
fendant, from  the  1st  of  October,  1875,  till  the  1st  of  November, 
1877,  occupied  certain  real  estate  belonging  to  the  plaintiff 
for  an  agreed  rent  of  thirty-seven  dollars  and  fifty  cents  per 
month,  payable  monthly  in  advance.  The  rent  was  not  paid 
according  to  agreement,  and  on  the  31st  of  October,  1877,  there 
was  due  the  plaintifE  the  sum  of  $173.63,  and  on  that  day  the 
present  suit  was  commenced,  returnable  to  the  City  Court  of 
the  city  of  Waterbury  holden  on  the  first  Monday  of  December, 
1877,  for  the  purpose  of  recovering  the  rent  due  prior  to  the 
1st  of  October,  1877.  On  the  1st  day  of  November,  1877,  the 
plaintiff  commenced  another  suit,  returnable  before  a  justice 
of  the  peace  on  the  10th  day  of  November,  1877,  to  recover  for 
the  rent  due  for  the  month  of  October,  1877.  Both  actions  were 
general  assumpsit'''  for  use  and  occupation  only,  and  all  the  rent 
was  due  when  the  first  suit  was  brought.  The  justice  suit  was 
first  tried,  in  which  the  plaintiff  filed  his  bill  of  particulars  for 
"one  month's  rent  from  October  1st,  1877,  to  November  1st, 
1877,  $37.50,"  and  recovered  judgment  for  the  amount  claimed, 
with  costs,  which  was  paid  and  satisfied  by  the  defendant  after 
execution  was  issued. 

In  the  present  action  the  plaintiff  filed  his  bill  of  particulars 
for  "twenty-four  months'  rent  up  to  October  1st,  1877,  at  $37.50 
per  month,"  giving  credit  for  the  amount  received,  and  show- 
ing a  balance  of  $136.13. 

The  defendant  pleaded  the  general  issue,  with  notice  that  the 
recovery  and  satisfaction  of  the  judgment  before  the  justice 
upon  a  part  of  the  same  cause  of  action  would  be  claimed  as 
a  bar  to  this  action. 

The  City  Court  decided  that  it  was  no  bar  and  the  ruling  was 
sustained  by  the  Superior  Court.  The  question  comes  before 
this  court  for  review  on  the  defendant's  motion  in  error. 

The  legal  proposition  that  a  judgment  for  a  part  of  one  en- 

6  Statement  and  parts  of  opinion  the  adoption  of  the  code,  but  it 
omitted.  would  seem  that  the  code  does  not 

7  This  action  was  brought  before      affect  the  question  involved. 


Sec.  1.]  Splitting  and  Consolidation,  11 

tire  demand  is  a  conclusive  bar  to  any  other  suit  for  another 
part  of  the  same  demand  is  everywhere  inflexibly  maintained. 

There  are  some  cases  of  great  hardship  where  this  court  has 
applied  the  principle,  showing  how  firmly  it  has  been  adhered 
to.    *    *    * 

In  the  case  at  bar  it  is  manifest  that  an  action  might  have 
been  brought  for  each  month's  rent  as  it  became  due,  and  so  far 
the  cause  of  action  would  have  been  several.*  But  after  all  the 
payments  have  become  due  and  the  consideration  is  executed, 
in  determining  whether  the  cause  of  action  is  single  and  entire 
or  several,  regard  should  be  had  to  the  obligation  of  the  defend- 
ant under  the  contract  at  the  time  the  action  is  brought.  If 
there  are  several  payments  due  under  one  and  the  same  contract 
they  then  become  consolidated,  as  one  obligation  on  the  part  of 
the  defendant  and  one  demand  on  the  part  of  the  plaintiff.  So 
that  if  this  action  was  founded  on  the  express  contract,  we 
should  hold  that  all  the  payments  due  should  be  included  in  one 
action.  But  here  the  action  is  not  predicated  on  the  promise  to 
pay  monthly  and  the  breaches  of  that  promise,  but  simply  on  the 
implied  contract  arising  from  the  use  and  occupation,  which 
was  one  continuous  and  entire  thing.  There  is  only  one  prom- 
ise founded  on  one  consideration,  and  there  is  unum  dehitum, 
one  debt,  which  the  defendant  owes.  So  that  the  demand  is 
clearly  single  and  entire  within  all  the  authorities,  and  the 
plaintiff  had  no  right  to  split  it  up  for  the  purpose  of  bringing 
several  actions,  and  having  done  so  the  first  valid  judgment  on 
the  merits  for  a  part  of  the  claim  became  an  effectual  bar  to  this 
action  for  the  residue. 

The  result  of  the  plaintiff's  attempt  to  split  his  cause  of  ac- 
tion will  be  the  loss  of  the  principal  part  of  his  debt,  which  is 
to  be  regretted.  But  the  law  ceases  to  be  law,  it  ceases  to  pro- 
mote justice,  if  it  is  changed  for  every  case.  The  greatest  good 
to  the  greatest  number  requires  a  firm  adherence  to  just  gen- 
eral principles.  Should  we  concede  to  the  plaintiff  in  this  case 
the  right  he  claims  to  maintain  these  two  suits,  it  would  of  nec- 
essity concede  also  his  right  to  split  his  cause  of  action  into 
twenty-five  parts,  one  for  each  month's  occupancy.     Such  a  re- 

8  Compare  Pakas  v.  Hollingshead,  not  be  maintained  on  a  contract 
184,  N.  Y.,  211  (1906),  to  the  to  deliver  property  in  installments, 
effect  that  successive  actions  can- 


12  Actions.  [Chap.  I. 

suit  would  be  simply  intolerable.  The  two  old  maxims  of  the 
law  on  which  our  decision  rests,  "Nemo  debet  his  vexari  pro 
eadem  causa/'  and  "Interest  reipuhlicae  ut  sit  finis  litium," 
are  embodiments  of  wisdom  and  justice.     •    •    * 

Again,  as  the  defendant  might  have  pleaded  the  pendency 
of  the  first  suit  in  abatement  of  the  second,  it  is  suggested 
whether  his  omission  to  do  so  may  not  be  considered  a  waiver 
of  his  right  to  plead  the  matter  in  bar. 

The  rule  in  law  on  which  we  base  our  decision  is  in  the  in- 
terest of  the  debtor  and  may  undoubtedly  be  waived  by  him. 

It  was  held  in  Mills  v.  Garrison,  3  Keyes,  40,  that  it  might 
be  waived  by  an  agreement  for  that  purpose.  But  in  this  case 
there  is  no  ground  of  waiver  at  all,  unless  it  is  the  omission  to 
plead  the  pendency  of  the  first  suit  in  abatement.  We  do  not 
see  how  this  can  waive  anything  except  what  is  involved  in  the 
order  of  pleading;  and  a  neglect  to  plead  in  abatement  surely 
waives  no  legitimate  matter  in  bar.  Marble  v.  Keyes,  9  Gray, 
221. 

There  was  error  in  the  judgment  complained  of  and  it  is 
reversed. 


COMMISSIONERS  OF  BARTON  CO.  v.  PLUMB. 

Supreme  Court  of  Kansas,  1878.    20  Kan.  147. 

Valentine,  J.  This  was  an  action  brought  in  Lyon  County 
by  the  board  of  county  commissioners  of  Barton  county  against 
P.  B.  Plumb  and  W.  T.  Soden  on  a  certain  penal  bond  executed 
by  them.  The  petition  below  sets  forth  and  alleges  among  other 
things  the  following  facts:  Said  bond  was  executed  by  John 
McDonald  as  principal,  and  P.  B.  Plumb  and  W.  T.  Soden  as 
sureties,  and  bound  said  McDonald,  Plumb,  and  Soden  unto 
said  county  of  Barton  in  the  penal  sum  of  fifty  thousand  dollars, 
to  be  void  however  upon  the  condition  that  said  McDonald 
should  comply  with  all  the  terms  of  a  certain  written  contract 
previously  entered  into  between  him  and  said  board  of  county 
commissioners,  whereby  he  agreed,  for  the  consideration  of 
$24,200  to  furnish  all  the  material  and  build  a  certain  court 
house  within  a  certain  time  in  said  county  of  Barton.  The  peti- 
tion also  alleges  that  the  county  on  its  part  complied  with  the 


Sec.  1,]  Splitting  and  Consolidation.  13 

tenns  and  conditions  of  said  bond  and  said  contract,  but  that 
McDonald  did  not  comply  on  his  part  with  all  the  terms  of  said 
contract.  In  great  detail  it  alleges  that  he  did  not  complete  said 
building  within  the  time  agreed  upon  by  the  parties,  nor  at  any 
other  time;  that  he  did  not  furnish  sufficient  material  therefor, 
and  that,  although  he  furnished  some  of  the  material  therefor, 
and  did  some  of  the  work  thereon,  yet  that  said  material  and 
said  work  were  of  an  inferior  quality,  and  were  not  such  as  were 
required  by  the  terms  of  said  written  contract.  The  petition 
also  alleges  certain  other  facts  tending  to  show  the  amount  of 
the  damages  which  resulted  to  the  plaintiff  from  the  non-com- 
pliance of  McDonald  with  said  contract,  and  then  asks  for  a 
judgment  for  the  plaintiff  for  $12,000  damages,  and  costs  of 
suit.  The  defendants  moved  "the  court  to  require  the  plaintiff 
to  separately  state  and  number  the  several  causes  of  action  con- 
tained in  plaintiff's  petition" — but  they  did  not  state  or  show 
how  many  or  what  causes  of  action  they  claimed  were  contained 
in  the  plaintiff's  petition.  The  court  sustained  this  motion;  but 
the  court  was  equally  silent  as  to  the  number  or  kinds  or  causes 
of  action  it  considered  were  contained  in  plaintiff's  petition. 
The  plaintiff  failed  to  amend  said  petition  in  any  manner  what- 
ever, and  for  that  reason  the  court  dismissed  the  action.  The 
plaintiff  assigns  said  rulings  of  the  court  below  as  eiTor, 

If  the  petition  did  in  fact  state  more  than  one  cause  of  action, 
as  is  claimed  by  the  defendants,  then  the  rulings  of  the  court 
below  were  correct;  but  if  it  really  stated  only  one  cause  of 
action,  as  is  claimed  by  the  plaintiff,  then  said  rulings  of  the 
court  below  were  evidently  erroneous.  We  think  the  petition 
really  stated  only  one  cause  of  action.  Houston  v.  Delahay,  14 
Kan.  125,  130.  (See  also  as  throwing  some  light  upon  this 
question,  the  following  cases,  to-wit:  Hibbard  v.  McKindley,  28 
111.  240 ;  State  v.  Davis,  35  Mo.  406 ;  Fisk  v.  Tank,  12  Wis.  276, 
298,  299 ;  Roehing  v.  Huebschman,  35  Wis.  185,  187 ;  Smith  v. 
B.  C.  &  M.  Rid.,  36  N.  H.  458,  484;  K.  C.  Hotel  Co.  v.  Sigement, 
53  Mo.  176,  177.)  The  defendants  by  executing  the  penal  bond 
set  forth  in  the  petition,  agreed  and  guaranteed  in  substance, 
that  McDonald  should  build  said  court  house  as  he  agreed  to  do ; 
but  McDonald  failed.  And  this  is  what  constitutes  the  plain- 
tiff's cause  of  action,  and  we  think  it  constitutes  only  one  cause 
of  action.  It  is  true,  that  McDonald  did  not  wholly  fail.  He 
built  a  court-house  or  a  part  of  a  court-house;  but  he  did  not 


14  AcTioi^S.  [Chap.  1. 

build  the  kind  and  quality  of  court-house  which  the  parties 
agreed  should  be  built;  and  evidently,  his  partial  failure  to 
build  said  court-house,  his  failure  in  some  of  the  innumerable 
particulars  in  building  the  same,  would  not  constitute  a  greater 
number  of  causes  of  action  than  a  total  failure  to  build  such 
court-house,  a  total  failure  in  every  particular.     Even  if  this 
action  should  be  governed  by  the  same  principles  which  would 
govern  in  an  action  brought  by  plaintiff  against  McDonald  on 
his  original  contract  to  build  said  court-house,  we  would  still 
think  that  the  same  result  would  follow,  and  that  the  facts  of 
the  case  would  constitute  only  one  cause  of  action.     McDonald 
simply  agreed  that  on  or  before  the  25th  of  December,  1873,  he 
would  furnish  to  the  plaintiff,  and  at  Great  Bend,  a  certain  kind 
and  quality  of  court-house,  completed  and  finished.    He  did  not 
agree  that  he  would  furnish  materials,  as  materials,  or  labor  as 
labor.     All  that  he  agreed  to  do  with  reference  to  furnishing 
materials  or  labor  was  that  he  would  furnish  them  in  a  court- 
house, and  as  a  part  of  the  court-house.    Under  said  contract  it 
was  his  legal  duty  to  furnish  said  materials  and  labor  in  said 
court-house,  and  not  otherwise;  and  the  plaintiff  had  a  legal 
right  to  receive  them  in  such  court-house,  and  not  in  any  other 
manner.    That  is,  it  was  the  legal  duty  of  McDonald  to  furnish 
to  the  plaintiff  said  court-house  as  he  agreed  to  do,  and  the 
plaintiff  had  a  legal  right  to  so  require  it.    McDonald  violated 
this  right  by  not  so  furnishing  said  court-house.     And  this  is 
just  what  constitutes  the  plaintiff's  cause  of  action  against  Mc- 
Donald on  said  contract.     That  is,  the  plaintiff's  cause  of  action 
is  founded  on  the  right  of  the  plaintiff  to  receive  said  court- 
house from  McDonald  according  to  said  contract,  and  the  viola- 
tion of  such  right  l)y  McDonald.     The  failure  on  the  part  of 
McDonald  to  furnish  materials  or  labor  was  no  violation  of  any 
right  of  the  plaintiff,  except  as  he  failed  to  furnish  them  in  the 
building  and  as  a  part  thereof.    The  materials  and  labor  when 
furnished  would  not  belong  to  the  plaintiff  until  they  were  put 
into  the  building.    Prior  to  that  time  they  would  belong  to  Mc- 
Donald.    He  could  bring  materials  onto  the  ground,  and  then 
take  them  away  if  he  chose.    He  could  put  them  into  the  build- 
ing, or  not,  just  as  he  chose.    And  after  completing  the  building, 
(if  he  had  done  so)   he  could  take  away  all  the  materials  not 
used  in  the  construction  of  the  building.     The  plaintiff  never 
did  own  nor  could  own  under  said  contract  any  part  of  the 


Sec.  1]  Splitting  and  Consolidation.  15 

materials  furnished  by  McDonald,  except  as  it  owned  them  as 
parts  and  portions  of  said  court-house  building.    From  the  fore- 
going, it  will  be  seen  that  the  plaintiff  possessed  one  grand  pri- 
mary right,  and  only  one  such  right,  and  that  that  right  was  to 
have  a  good  court-house  built  according  to  said  contract.    With- 
in this  grand  primary  right,  however,  there  existed  innumerable 
subordinate  and  secondary  rights.     These  subordinate  and  sec- 
ondary rights  reached  to  all  the  illimitable  details  in  the  con- 
struction of  said  building.     Thus,  the  plaintiff  had  a  right  to 
have  every  brick  of  proper  quality,  and  put  into  the  building  in 
a  proper  manner.    So  also  with  respect  to  every  piece  of  lumber, 
pane  of  glass,  nail,  lock,  hinge,  etc.     Now  each  of  these  innu- 
merable subordinate  rights  might  be  violated,  and  the  violation 
of  any  one  of  them  would  constitute  a  cause  of  action.     Thus, 
if  McDonald  had  put  a  broken  or  crooked  pane  of  glass  into  a 
window,  instead  of  putting  in  a  good  one,  or  had  not  puttied  it 
in  well,  the  plaintiff  would  have  had  a  cause  of  action  against 
him  for  the  resulting  damages.     The  same  thing  may  be  said 
with  respect  to  putting  a  brick  in  the  wall,  or  a  piece  of  tin 
on  the  roof,  or  a  board  in  the  floor.    And  so  on  through  all  the 
limitless  details  in  constructing  the  building.    But  the  violation 
of  each  of  these  special  and  subordinate  rights  is  also  a  violation 
of  the  more  general  and  primary  right,  and  altogether  they  con- 
stitute only  one  violation  of  this  grand  primary  right.    Now  as 
the  violation  of  any  one  of  these  subordinate  rights  would  con- 
stitute a  cause  of  action,  it  might  seem  that  the  violation  of  a 
hundred  or  a  thousand  of  such  subordinate  rights  would  consti- 
tute a  hundred  or  a  thousand  separate  and  distinct  causes  of 
action.    But  such  is  not  the  case,  or  at  most  it  is  rarely  the  case. 
Possibly  the  plaintiff  might  in  some  cases  be  allowed  to  elect 
whether  he  would  treat  the  several   violations   of  his  several 
subordinate  rights  as  separate  and  distinct  causes  of  action,  or 
as  only  one  cause  of  action,  but  generally  he  would  not  be  al- 
lowed to  do  so.     Generally  he  would  not  be  allowed  to  split  up 
into  several  causes  of  action  what  he  might  prosecute  as  only 
one  cause  of  action.     In  the  present  case  we  think  that  all  the 
violations  of  the  plaintiff's  subordinate  rights  under  said  con- 
tract really  constitute  only  one  general  violation  of  its  general 
and  primary  right  under  said  contract,  and  therefore  that  all 


16  Actions.  [Chap.  I. 

of  such  violations  really  constitute  only  one  cause  of  action.® 
All  of  said  violations  taken  together  were  merely  a  violation  of 
the  plaintiff's  general  right  to  have  said  court-house  built  ac- 
cording to  contract.  McDonald  was  to  be  paid  $24,200  in  in- 
stallments, upon  estimates  made  as  work  progressed ;  but  it  was 
expressly  stipulated  that  "no  payment  or  estimate  shall  be  con- 
sidered as  acceptance  of  all  or  any  part  of  the  work ;  and  no  ac- 
ceptance shall  be  conclusive  and  final  until  the  entire  completion 
and  acceptance  of  the  work."  When  McDonald  adandoned  the 
work,  on  20th  January,  1874,  the  plaintiff's  cause  of  action  was 
complete.  The  fact  that  the  plaintiff  afterward  proceeded  with 
the  work,  and  completed  the  building,  did  not  give  to  the  plain- 
tiff another  or  an  additional  cause  of  action.  The  necessary 
cost  of  completing  the  building  may  however  be  shown  in  the 
case  for  the  purpose  of  measuring  the  plaintiff's  damages. 

There  are  several  other  facts  alleged  in  the  plaintiff's  petition, 
which  do  not  go  to  make  up  or  constitute  the  plaintiff's  cause 
of  action,  but  are  alleged  merely  for  the  purpose  of  giving  a 
measure  for  the  plaintiff's  damages,  or  special  damages  which 
have  resulted  from  wrongs  constituting  the  plaintiff's  cav^e  of 
action. 

The  judgment  of  the  court  below  will  be  reversed,  and  the 
cause  remanded  with  the  order  that  said  order  of  dismissal,  and 
said  order  requiring  the  plaintiff  to  separately  state  and  number 
the  several  causes  of  action  contained  in  the  plaintiff's  petition, 
be  set  aside,  and  that  further  proceedings  be  had  in  the  case  in 
accordance  with  this  opinion. 


MILLARD  V.  MISSOURI,  KANSAS  &  TEXAS  R.  R.  CO. 

Court  of  Appeals  of  New  York,  1881.    86  N.  Y.  441. 

Appeal  from  judgment  of  the  general  term  of  the  supreme 
court,  in  the  second  judicial  department,  entered  upon  an  order 

» Accord:     Fisk  v.  Tank,  12  Wis.  Rissler    v.    Ins.    Co.,    150    Mo.    366 

307;  Nichols  v.  Alexander,  28  Wis.  (insurance   policy  where   the   total 

118  (several  breaches  of  covenant) ;  was   apportioned  to   different   arti- 

State  V.  Davis,  35  Mo.  406.     (Sev-  cles). 
eral    breaches    of   a   penal   bond) ; 


Sec.  1.]  Splitting  and  Consolidation.  17 

made  Feb.  10,  1880,  which  affirmed  a  judgment  in  favor  of  the 
plaintiff,  entered  upon  a  verdict.  (Reported  Below,  20  Hun. 
191.) 

This  action  was  brought  to  recover  for  the  loss  of  certain  mer- 
chandise, while  being  transported  on  defendant's  road. 

The  facts  proved  were  substantially  these : 

On  the  30th  of  April,  1873,  the  plaintiff  and  one  William 
Brady  purchased  tickets  and  took  passage  on  the  defendant's 
road  at  St.  Louis,  Mo.,  for  Dennison,  Tex.  Plaintiff  had  with 
him  a  valise,  containing  his  wearing  apparel  and  articles  known 
as  baggage,  and  a  packing  box  or  trunk,  containing  merchandise. 
Brady  had  with  him  one  trunk,  containing  his  personal  baggage, 
and  two  packing  boxes,  or  trunks,  containing  merchandise.  The 
tickets  entitled  the  plaintiff  and  Mr.  Brady  to  carry  a  certain 
amount  of  baggage  without  extra  compensation.  The  defend- 
ant's agent  at  St.  Louis,  on  being  advised  of  their  contents,  re- 
fused to  put  the  packing  boxes  aboard  the  train,  and  insisted 
that  they  should  be  sent  as  freight.  The  plaintiff  explained  to 
him  the  nature  of  their  contents,  and  that  it  was  important  that 
they  should  go  on  the  train  with  them ;  and  thereupon  the  agent 
weighed  them  together  with  the  baggage,  and  charged  $8  or  $10 
for  carrying  the  packing  boxes,  which  plaintiff  and  Mr.  Brady 
paid,  and  they  were  then  put  aboard  the  train  with  the  baggage ; 
all  were  destroyed  by  fire  on  the  following  day,  while  in  defend- 
ant's  possession,  and  during  the  journey,  Mr.  Brady  assigned 
his  claims  against  the  defendant  to  the  plaintiff,  and  in  1873 
the  latter  brought  an  action  to  recover  the  value  of  the  baggage 
so  lost;  he  recovered  judgment  in  said  action,  which  was  paid. 
A  bill  of  particulars  was  served  in  that  action  which  contained 
the  items  of  merchandise  contained  in  the  packing  boxes  as  well 
as  the  baggage;  the  court,  however,  ruled  upon  the  trial  that 
nothing  but  the  personal  baggage  could  be  recovered  for  in  that 
action,  as  the  complaint  did  not  allege  the  contract  to  convey 
the  merchandise,  and  that  the  goods  now  in  suit  did  not  come 
within  the  term  "baggage,"  and  accordingly  excluded  proof  in 
regard  to  the  same;  and  plaintiff  withdrew  all  claims  for  such 
merchandise. 

.  Earl,  J.  The  claim  is  made  on  the  part  of  the  appellant,  that 
the  rule,  that  where  a  party  brings  an  action  for  a  part  only  of 
an  entire,  indivisible  demand,  and  recovers  judgment,  he  cannot 
subsequently  maintain  an  action  for  another  part  of  the  same 


18  Actions.  [Chap.  I. 

demand,  was  violated  in  the  judgment  rendered  in  this  action. 

The  facts,  as  the  trial  judge  found  them,  or  may  be  presumed 
in  support  of  the  judgment  to  have  found  them,  are  as  follows: 
There  were  two  contracts  made  with  each,  the  plaintiff  and  his 
assignor,  one  with  each  to  carry  him  and  his  baggage,  and  the 
other  subsequently  made  to  carry  the  chattels  contained  in  his 
trunk. 

It  was  decided  in  the  prior  action  that  that  was  based  solely 
upon  the  contract  to  carry  the  passengers  and  their  baggage. 
The  recovery  was  there  limited  to  such  baggage,  and  it  was  held 
that  the  contracts  alleged  did  not  cover  the  chattels  involved  in 
this  action. 

This  action  is  based  upon  separate  contracts  to  carry  the  chat- 
tels which  were  not  properly  baggage,  and  which  were  contained 
in  the  trunks.  It  was  manifestly  in  reference  to  such  chattels 
that  the  extra  compensation  was  demanded  by  the  defendant 
and  separate  contracts  thus  made. 

The  former  recovery  does  not,  therefore,  bar  this  action.  A 
single  demand  was  not  divided  in  violation  of  the  rule  above  re- 
ferred to.  (Stoneman  v.  Erie  R.  R.  Co.,  52  N.  Y.  429;  Sloman 
V.  Great  Western  R.  R.  Co.,  67  id.  208.)  And  this  result  follows 
although  the  plaintiff  in  the  former  action  recovered  for  the 
trunks  in  which  the  chattels  here  in  question  were  packed,  be- 
cause such  recovery  was  had,  perhaps  erroneously,  under  the 
contracts  there  alleged,  and  not  under  the  contracts  alleged  in 
this  action. 

The  judgment  should  be  affirmed,  with  costs. ^" 


VAN  HOOZIER  v.  HANNIBAL  &  ST.  JOSEPH  R.  R.  CO. 

Supreme  Court  of  Missouri,  1879.    70  Mo.  145. 

Hough,  J.*  This  is  an  action  for  damages  arising  from  the 
diversion,  by  the  defendant,  in  1873,  of  a  stream  of  running 
water,  whereby  portions  of  the  plaintiff's  land  were,  in  the  year 
1875,  overflowed  and  rendered  unfit  for  cultivation,  his  crops 

10  See  also  Townsley  v.  Niagara         1  Part    of   the    case   omitted. 
Ins.  Co.,   218   N.   Y.   228    (1916). 


Sec.  1.]  Splitting  and  Consolidation.  19 

destroyed  and  his  timber  injured.  The  defendant  pleaded  not 
guilty  and  a  former  recovery.  There  was  a  verdict  and  judg- 
ment for  the  plaintiff  under  the  plea  of  former  recovery.  The 
defendant  introduced  in  evidence  the  pleadings  in  a  suit  for 
damages,  instituted  by  the  plaintiff  against  it  in  1875,  together 
with  the  instructions  of  the  court,  the  verdict  of  the  jury,  and  the 
judgment  of  the  court  thereon  in  favor  of  the  plaintiff.  It  was 
then  admitted  by  the  parties  "that  the  land  injured  is  the  same 
in  both  suits,  that  the  parties  plaintiff  and  defendant  are  the 
same,  that  the  cause  of  the  injury  is  the  same,  and  the  cause  of 
the  injury,  defendant's  railroad  and  plaintiff's  land  are  all  in 
the  same  condition  as  at  the  commencement  of  this  suit,  the 
judgment  in  which  is  pleaded  in  bar  of  this  action,  the  only  dif- 
ference being  that  said  former  suit  was  prosecuted  for  damages 
during  the  years  1873  and  1874,  while  the  present  suit  is  for 
damages  during  the  year  1875,  and  since  the  institution  of  the 
prior  suit  and  to  the  institution  of  the  present  suit. ' '  By  agree- 
ment of  the  parties,  the  plea  of  former  recovery  was  first  tried 
before  the  court,  the  defendant  claiming  that  the  cause  of  the 
injury,  for  which  the  former  judgment  was  recovered  was  of  a 
permanent  character,  and  that  the  entire  damages,  both  for  past 
and  future  injuries,  resulting  therefrom,  could  and  should  have 
been  recovered  in  that  suit,  and  that  the  judgment  therein  was, 
therefore,  a  bar  to  the  present  action. 

In  cases  of  nuisance  the  rule  is  well  settled  that  the  plaintiff 
cannot  recover  for  injuries  not  sustained  when  his  action  is  com- 
menced. It  is  equally  well  settled  that  when  the  injury  inflicted 
is  of  a  permanent  character  and  goes  to  the  entire  value  of  the 
estate,  the  whole  injury  is  suffered  at  once,  and  a  recovery 
should  be  had,  therefore,  in  a  single  suit,  and  no  subsequent  ac- 
tion can  be  maintained  for  the  continuance  of  such  injury.  But 
when  the  wrong  done  does  not  involve  the  entire  destruction  of 
the  estate,  or  its  beneficial  use,  but  may  be  apportioned  from 
time  to  time,  separate  actions  must  be  brought  to  recover  the 
damages  so  sustained,  and  former  suit  will  be  no  bar  to  a  re- 
covery in  another  action  for  damages  suffered  subsequent  to  the 
institution  of  the  first  suit.  The  town  of  Troy  v.  Cheshire  R.  R. 
Co.,  3  Foster  83;  Cheshire  Turnpike  Co.  v.  Stevens,  13  N.  H. 
8;  Wood  on  Nuis.,  §  856;  Pinney  v.  Berry,  61  Mo.  367.  The 
lands  in  question  lie  north  of  the  defendant's  railroad,  and  the 
streami  diverted  originally  flowed  along  and  a  few  rods  south  of 


20  Actions.  [Chap.  I. 

said  road.  The  defendant  erected  a  dam  or  embankment  across 
the  channel  of  the  stream  and  made  a  ditch  or  culvert  in  the 
road  bed  through  which  the  water  of  the  stream  was  conducted 
upon  the  plaintiff's  land.  Portions  of  these  lands  were  annually 
cultivated  after  the  nuisance  was  levied,  and  the  crops  thereon 
annually  injured,  so  that  it  is  patent  that  the  injury  thereby 
inflicted  did  not  go  to  the  entire  value  of  the  estate,  but  was 
of  yearly  recurrence  and  varied  in  extent  with  the  volume  of 
water  discharged  upon  the  land.  Such  being  the  facts,  it  is 
plain  that  the  injury  is  a  continuous  one,  susceptible  of  period- 
ical apportionment,  and,  therefore,  capable  of  being  redressed 
by  successive  actions.  It  follows  from  these  views  that  the  court 
conmiitted  no  error  in  overruling  the  plea  of  former  re- 
covery.    •    •    • 

•     •     •     The  other  judges  concurring  the  judgment  of  the 
circuit  court  will  be  affirmed.* 


HUESTON  V.  MISSISSIPPI  BOOM  COMPANY. 

Supreme  Court  of  Minnesota,  1899.    76  Minn.  251. 

Mitchell,  J.  In  1897  the  plaintiff,  as  vendee  under  an  execu- 
tory contract  of  sale,  was  in  the  possession  of  a  tract  of  land  in 
Anoka  county  bordering  on  the  Mississippi  river,  a  tributary  of 
which,  called  "Rice  Creek,"  ran  through  the  land.  On  this 
creek  there  was  a  mill  for  grinding  flour  and  feed,  operated  by 
water  power  furnished  by  the  creek.  The  mill  had  been  oper- 
ated by  the  plaintiff  for  some  years,  and  had  an  established  line 
of  custom.  About  six  acres  of  plaintiff's  land  near  the  river 
were  used  and  were  especially  adapted  for  pasturage.  The  bal- 
ance of  the  land  was  used  in  connection  with  the  mill  and  the 
dam.  About  five-eights  of  a  mile  below  plaintiff's  land  there 
was  an  island  in  the  Mississippi  river,  about  half  a  mile  long. 
Prior  to  1897  the  defendant  built  a  boom  from  this  island  to  the 

tFor    a    case    of    successive    »c-  Q.    B.    D.    125,    (1885). 

tions  for  damage  from  the  caving  For    an    extensive    collection    of 

in  of  the  surface  caused  by  prior  the    nuisance    cases,    see    City    of 

mining    operations.      See    Mitchell  Ottumwa    v.    Nicholson,    L.    R.    A. 

V.   Parley    Colliery   Co.   L.   R.,    14  1916  E.   983,    (1913),   annotated. 


Sec.  1.]  Splitting  and  Consolidation.  21 

east  bank  of  the  river,  and  had  established  there  its  assorting 
gap  for  the  purpose  of  distributing  logs  to  the  mills  of  Minne- 
apolis. The  defendant  had  also  put  in  a  line  of  piling  from  the 
upper  end  of  the  island  to  the  west  bank  of  the  river,  for  the 
purpose  of  running  logs  into  the  boom.  As  a  result  of  the  erec- 
tion and  maintenance  of  these  works,  about  the  1st  of  April, 
1897,  a  large  log  jam  was  formed,  which  caused  the  water  to 
overflow  plaintiff's  land,  and  come  up  into  his  mill,  so  as  to  in- 
jure it,  and  prevent  him  from  operating  it  for  some  nine  days. 
About  the  first  of  July,  another  jam  occurred  from  the  same 
cause,  which  again  flooded  plaintiff's  land  and  mill,  resulting 
in  further  damage  to,  and  loss  of  the  use  of,  the  mill,  and  destroy- 
ing and  killing  the  grass  on  the  pasture  land  to  such  an  extent 
that  it  would  require  one  or  two  years  to  restore  it.  Another 
consequence  of  this  overflow  was  that  when  it  receded  it  left 
sand  and  other  debris  on  the  pasture  land.  There  is  really  no 
controversy  but  that  the  construction  and  maintenance  of  de- 
fendant's works  caused  these  overfloAvs,  and  consequent  damage 
to  plaintiff's  premises.    •    •    • 

The  complaint  alleged  generally  the  unlawful  construction 
and  maintenance  of  defendant's  works,  and  the  consequent  in- 
jury to  plaintiff's  premises  in  1897;  and  upon  the  trial  he  was 
permitted,  against  the  objection  of  the  defendant,  to  introduce 
evidence  of  the  overflow  and  consequent  damage,  both  in  April 
and  in  July.  There  is  nothing  in  the  point  that  there  were  two 
separate  and  distinct  causes  of  action,  which  ought  to  have  been 
pleaded  as  such.  It  was  in  the  nature  of  a  continuing  trespass* 
by  the  same  act,  although  resulting  in  actual  damage  on  two 
different  occasions.    •    •    * 

Judgment  affirmed. 


8  Brace,  P.  J.  In  Darby  v.  Mo.  of  hogs  at  divers  times  during 
Kan.  &  Texas  K.  R.  Co.,  156  Mo.  that  season.  The  damage  was  con- 
391:  •  •  *  "The  wrong  com-  tinuous  with  the  wrong,  not  sus- 
plained  of  and  proven  in  this  ceptible  of  division,  either  as  to 
cause,  was  the  failure  of  defend-  quantum  or  date,  and  the  court 
ant  to  maintain  its  fence  as  re-  did  not  err  in  permitting  a  re- 
quired by  the  statute  during  the  covery  of  the  whole  damage  in  one 
period  aforesaid.  The  damages  count.  (Steiglider  v.  Mo.  Pac.  Ry. 
proven  was  the  injury  to  plain-  Co.,  38  Mo.  App.  511)." 
tiff's    crop    of    corn    by   incursions 


22  Actions.  [Chap.  I. 

RE  ILLY  V.  SICILIAN  ASPHALT  PAVING  CO. 

Court  of  Appeals  of  New  York,  1902.    170  N.  Y.  40. 

CuLLEN,  J.  The  appellant  claimed  that  while  driving  in  Cen- 
tral Park,  in  the  city  of  New  York,  both  his  person  and  his  ve- 
hicle were  injured  in  consequence  of  collision  with  a  gravel  heap 
placed  on  the  road  through  the  negligence  of  the  defendant. 
Thereupon  he  brought  an  action  against  the  defendant  in  the 
court  of  common  pleas  to  recover  damages  for  the  injury  to  his 
person.  Subsequently  he  brought  another  action  in  one  of  the 
district  courts  of  the  city  of  New  York  to  recover  for  the  injury 
to  his  vehicle.  In  this  last  action  he  obtained  judgment  which 
was  paid  by  the  defendant.  Thereafter  the  defendant  set  up 
by  supplemental  answer  the  judgment  in  the  district  court  suit 
and  its  satisfaction  as  a  bar  to  the  further  maintenance  of  the 
action  in  the  common  pleas.  On  the  trial  of  the  case  in  the 
supreme  court,  to  which,  under  the  constitution,  the  action  was 
transferred,  it  was  held  that  the  plaintiff's  right  of  action  was 
merged  in  the  judgment  recovered  in  the  district  court,  and  his 
complaint  was  dismissed.  The  judgment  entered  upon  this  di- 
rection was  affirmed  by  the  appellate  division,  and  an  appeal  has 
been  taken  to  this  court  by  allowance.  The  rule  is  that  a  single 
or  entire  cause  of  action  cannot  be  subdivided  into  several  claims, 
and  separate  actions  maintained  thereon.  Secor  v.  Sturgis,  16 
N.  Y.  548 ;  Nathans  v.  Hope,  77  N.  Y.  420.  As  to  this  principle 
there  is  no  dispute.  Therefore  the  question  presented  by  bis 
appeal  is  whether,  from  the  defendant's  negligence,  and  the 
injury  occasioned  thereby  to  the  plaintiff  in  his  person  and  his 
property,  there  arose  a  single  cause  of  action,  or  two  causes  of 
action,  one  for  the  injury  to  his  person,  and  the  other  for  injury 
to  his  property.  The  question  is  not  determined  by  the  code  of 
civil  procedure,  for,  though  in  section  484  it  prescribes  what 
separate  causes  of  action  may  be  joined  in  the  same  complaint, 
it  nowhere  assumes  to  define  what  is  a  single  cause  of  action.* 

4  The  definition  of  a  cause  of  der  to  obtain  some  particular  re- 
action most  frequently  quoted  in  suit  which  we  term  the  remedy, 
the  cases  is  that  formulated  by  which  the  code  calls  the  "relief", 
the  late  Professor  Pomeroy  in  his  and  which,  when  granted,  is 
work   on  Code  Kemedies.   §   347:  summed   up   and   embodied   in   the 

•'Every  action  is  brought  in  or-  judgment    of  the   court.     This  re- 


Sec.  1.] 


Splitting  and  Consolidation. 


23 


Nor  is  there  any  controlling  decision  of  this  court  on  the  point. 
In  Mulligan  v.  Ice  Co.,  (affirmed  without  opinion)  109  N.  Y. 
657,  16  N.  E.  684,  the  question  discussed  in  the  opinion  of  the 


suit  is  not  the  "cause  of  action" 
as  that  term  is  used  in  the  codes. 
It  is  true  this  final  result,  or 
rather  the  desire  of  obtaining  it, 
is  the  primary  motive  which  acts 
upon  the  will  of  the  plaintiff  and 
impels  him  to  commence  the  pro- 
ceeding, and  in  the  metaphysical 
sense  it  can  properly  be  called 
the  cause  of  this  action,  but  it 
certainly  is  not  so  in  the  legal 
sense  of  the  phrase.  This  final 
result  is  the  "object  of  the  ac- 
tion" as  that  term  is  frequently 
used  in  the  codes  and  in  modern 
legal  terminology.  It  was  shown 
in  the  introduction  that  every 
remedial  right  arises  out  of  an 
antecedent  primary  right  and  cor- 
responding duty  and  a  delict  or 
breach  of  such  primary  right  and 
duty  by  the  person  on  whom  the 
duty  rests.  Every  judicial  action 
must  therefore  involve  the  follow- 
ing elements:  a  primary  right  pos- 
sessed by  the  plaintiff,  and  a  cor- 
responding primary  duty  devolving 
upon  the  defendant;  a  delict  or 
wrong  done  by  the  defendant 
which  consisted  in  a  breach  of 
such  primary  right  and  duty;  a 
remedial  right  in  favor  of  the 
plaintiff,  and  a  remedial  duty  rest- 
ing on  the  defendant  springing 
from  this  delict,  and  finally  the 
remedy  or  relief  itself.  Every  ac- 
tion, however  complicated  or  how- 
ever simple,  must  contain  these 
essential  elements.  Of  these  ele- 
ments, the  primary  right  and  duty 
and  the  delict  or  wrong  combined 
constitute  the  cause  of  action  in 
the  legal  sense  of  the  term,  and 
as  it  is  used  in  the  codes  of  the 
several  States.    They  are  the  legal 


cause  or  foundation  whence  the 
right  of  action  springs,  this  right 
of  action  being  identical  with  the 
"remedial  right"  as  designated 
in  my  analysis."  (Reprinted  by 
permission  of  the  Publishers, 
Messrs.  Little,  Brown  &  Co.) 

It  is  unquestionably  true  that 
nearly  all  of  the  common  law  ac- 
tions were  based  on  a  primary 
right  in  the  plaintiff  with  a  cor- 
responding duty  on  the  defendant, 
and   a   breach    of   that   duty. 

But  this  does  not  appear  to  be 
the  case  in  all  actions.  For  ex- 
ample, in  the  ease  of  an  action 
or  suit  for  the  partition  of  land 
between  tenants  in  common, 
whether  at  law  or  in  equity,  the 
cause  of  action  does  not  appear 
to  embrace  any  elements  of  duty 
or  breach.  The  right  of  action, 
i.  e.,  the  power  or  the  ability  to 
maintain  the  action,  seems  to  result 
from  the  mere  relation  of  tenants 
in  common.  So  in  case  of  an  ac- 
tion or  proceeding  to  probate  a 
will,  there  is  no  question  of  duty 
or  breach.  The  act  of  the  testa- 
tor, under  proper  formalities,  gives 
rise  to  a  power  on  the  part  of 
the  legatees  to  obtain  judicial  ac- 
tion establishing  the  instrument. 
Perhaps  no  better  definition  of  a 
right  of  action  can  by  found  than 
this  by  Cardozo,  J.,  in  Jacobus  v. 
Colgate,  217  N.  Y.  235:  "The 
right  to  prosecute  an  action  with 
effect."  See  also  that  by  Spear, 
J.,  in  B.  &  O.  R.  R.  v.  Larwille, 
83  Ohio  St.  108:  "A  cause  of 
action  is  the  fact  or  combina- 
tion of  facts  which  give  rise  to 
the  right  of  action,  the  existence 
of  which   affords   a  party   a  right 


24 


Actions. 


[Chap.  I. 


learned  court  below,  and  necessarily  involved  in  the  decision  of 
this  court,  was  the  effect  of  a  release  which  the  plaintiff  asserted 
was  intended  to  cover  only  the  injuries  to  his  property,  but  was 
fraudulently  prepared  so  as  to  embrace  his  whole  cause  of  ac- 
tion. The  case  is  doubtless  authority  for  the  proposition  that 
the  voluntary  settlement  between  the  parties  of  a  part  of  a  claim 
does  not  satisfy  or  discharge  the  whole  claim.  But  the  principle 
that  the  parties  may,  by  a  voluntary  agreement,  sever  or  split 
up  a  single  cause  of  action,  though  a  plaintiff  cannot  of  his  own 
volition  do  the  same,  seems  to  be  generally  recognized  even  in 
those  jurisdictions  where  the  rule  is  held  most  firmly  that  a 


to  judicial  interference  in  his  be- 
half." 

In  Professor  Pomeroy's  defini- 
tion it  is  not  clear  what  is  meant 
by  a  remedial  duty,  and  it  is  to 
be  regretted  that  the  author  left 
the  expression  without  explanation. 

In  some  eases  a  new  duty  seems 
to  arise  out  of  the  commission  of 
a  wrong;  for  example,  under  the 
doctrine  of  waiver  of  tort,  the 
owner  of  a  converted  chattel  may 
elect  to  treat  the  converter  as  a 
purchaser  and  recover  the  value 
by  an  action  of  general  assumpsit 
for  goods  sold  and  delivered.  Prob- 
ably in  such  cases  there  is  a 
duty  to  pay,  but  it  seems  to  be 
the  same  sort  of  a  duty  as  that 
incurred  by  an  actual  purchaser, 
namely,  a  primary  duty. 

In  the  case  of  a  common  law 
debt,  the  primary  duty  was  to  pay 
at  maturity,  the  breach  of  which 
may  be  thought  of  as  creating  a 
continuing  duty  to  pay,  which  dif- 
fers in  that  respect  from  the  orig- 
inal duty.  The  same  situation 
appears  in  the  case  of  a  bailee 
who  fails  to  surrender  the  chattel 
on  the  termination  of  the  bailment. 
Here  again  there  is  a  new  con- 
tinuing duty  to  surrender.  In  the 
case  of  a  tortious  taking  there  is 
a  striking  difference   between  the 


original  duty  not  to  take  and  the 
new   duty  to   surrender. 

So,  where  courts  of  equity  give 
specific  performance  or  specific  rep- 
aration there  may  well  be  a  new 
continuing  duty. 

If  it  is  meant  that  such  duties 
are  remedial  in  the  sense  that 
they  are  enforced  by  the  judgment 
or  decree,  it  is  difficult  to  find  any 
corresponding  element  in  the  case 
of  most  common  law  torts  and 
breaches  of  executory  contracts. 

As  neatly  put  by  the  Court  of 
Queen's  Bench  in  Clegg  v.  Dear- 
don,  12  Ad.  &  El.  (N.  S.)  575: 
"There  is  a  legal  obligation  to 
discontinue  a  trespass  or  remove 
a  nuisance;  but  no  such  obligation 
upon  a  trespasser  to  replace  what 
he  has  pulled  down  or  destroyed 
on  the  lands  of  another,  though 
he  is  liable  in  an  action  of  tres- 
pass to  compensate  in  damages  for 
the  loss  sustained."  Can  the  mere 
liability  to  a  judgment  for  dam- 
ages be  thought  of  as  a  duty? 
The  judgment  itself,  of  course, 
creates  a  duty  because  it  creates 
a  debt.  But  until  judgment  there 
seems  to  be  nothing  but  a  power 
on  the  one  side  and  a  liability  on 
the  other,  for  there  is  clearly  no 
duty  to  pay  damages  which  have 
not  been  ascertained. 


Sec.  1.]  Splitting  and  Consolidation,  25 

single  tort  gives  rise  to  but  a  single  cause  of  action.  O'Beirne 
V.  Lloyd,  43  N.  Y.  248 ;  Bliss  v.  Railroad  Co.,  160  Mass.  447,  36 
N.  E.  65,  39  Am.  St.  Rep.  504. 

The  question  now  before  us  has  been  the  subject  of  conflicting 
decisions  in  different  jurisdictions.  In  England  it  has  been  held 
by  the  court  of  appeal  (Lord  Coleridge,  C.  J.,  dissenting)  that 
damages  to  the  person  and  to  property,  though  occasioned  by 
the  same  wrongful  act,  give  rise  to  different  causes  of  action 
(Brunsden  v.  Humphrey,  14  Q.  B.  D.  141),  while  in  Massachu- 
setts, Minnesota  and  Missouri,  the  contrary  doctrine  has  been  de- 
clared :  (Doran  v.  Cohen,  147  Mass.  342,  17  N.  E.  647 ;  King  v. 
R.  R.  Co.  [Minn.]  82  N.  W.  1113,  50  L.  R.  A.  161,  81  Am.  St. 
Rep.  238;  Von  Fragstein  v.  Windier,  2  Mo.  App.  598.)  The  ar- 
gument of  those  courts  which  maintain  that  an  injury  to  person 
and  property  creates  but  a  single  cause  of  action  is  that,  as  the 
defendant's  wrongful  act  was  single,  the  cause  of  action  must  be 
single,  and  that  the  different  injuries  occasioned  by  it  are 
merely  items  of  damage  proceeding  from  the  same  wrong,  while 
that  of  the  English  court  is  that  the  negligent  act  of  the  defend- 
ant in  itself  constitutes  no  cause  of  action,  and  becomes  an  ac- 
tionable wrong  only  out  of  the  damage  which  it  causes.  ''One 
wrong  was  done  as  soon  as  the  plaintiff's  enjoyment  of  his  prop- 
erty was  substantially  interfered  with.  A  further  wrong  arose 
as  soon  as  the  driving  also  caused  injury  to  the  plaintiff's  per- 
son." Brunsden  v.  Humphrey,  supra.  I  doubt  whether  either 
argument  is  conclusive.  If,  where  one  person  was  driving  the 
vehicle  of  another,  both  the  driver  and  the  vehicle  were  injured, 
there  can  be  no  doubt  that  two  causes  of  action  would  arise — 
one  in  favor  of  the  person  injured,  and  the  other  in  favor  of  the 
owner  of  the  injured  property.  On  the  other  hand,  if  both  the 
horse  and  the  vehicle,  being  the  property  of  the  same  person, 
were  injured,  there  would  be  but  a  single  cause  of  aetion  for 
the  damage  to  both.  If,  while  injury  to  the  horse  and  vehicle 
of  a  person  give  rise  to  but  a  single  cause  of  action,  injury  to 
the  owner  and  vehicle  gives  rise  to  two  causes  of  action,  it  must 
be  because  there  is  an  essential  difference  betwen  an  injury  to 
the  person  and  an  injury  to  property,  that  makes  it  impracticable, 
or  at  least  very  inconvenient,  in  the  administration  of  justice,  to 
blend  the  two.  We  think  there  is  such  a  distinction.  Different 
periods  of  limitation  apply.  The  plaintiff's  action  for  personal 
injuries  is  barred  by  the  lapse  of  three  years;  that  to  the  prop- 


26  Actions.  [Chap.  1. 

erty  not  till  the  lapse  of  six  years.  The  plaintiff  cannot  assign 
his  right  of  action  for  injury  to  his  person,  and  it  would  abate 
and  be  lost  by  his  death  before  the  recovery  of  a  verdict,  and,  if 
the  defendant  were  a  natural  person,  also  by  his  death  before 
that  time.  On  the  other  hand,  the  right  of  action  for  injury  to 
property  is  assignable  and  would  survive  the  death  of  either 
party.  It  may  be  seized  by  creditors  on  a  bill  in  equity  (Hud- 
son v.  Plets,  11  Paige  180),  and  would  pass  to  an  assignee  in 
bankruptcy.  Possibly  the  difficulties  arising  from  the  difference 
in  the  periods  of  limitation  and  the  difference  in  the  rule  of  sur- 
vival between  a  personal  injury  and  a  property  injury  might 
be  obviated  in  practice  by  holding  the  statute  a  bar  to  that  por- 
tion of  the  damages,  a  claim  for  which  would  have  been  out- 
lawed had  it  been  a  separate  cause  of  action,  and  by  permitting, 
in  case  of  death,  the  action  to  be  revived  so  far  as  it  relates  to 
property.  We  do  not  see,  however,  how  it  would  be  practicable 
to  deal  with  a  case  where  the  right  of  action  for  injury  to  the 
property  had  passed  to  an  assignee  in  bankniptcy,  or  to  a  re- 
ceiver on  creditor's  bill,  without  treating  it  as  an  independent 
cause  of  action.  Though,  as  we  have  already  said,  section  484 
of  the  code  does  not  expressly  determine  the  point  in  issue,  still 
it  is  not  without  much  force  in  the  argument  that  the  two  in- 
juries constitute  separate  causes  of  action.  Under  the  old  code 
of  procedure,  at  the  time  of  its  original  enactment  injuries  to 
person  and  injuries  to  property  were  separately  classified  as 
causes  of  action,  and  it  was  not  permitted  to  join  those  of  one 
class  with  those  of  another.  Code  Proc.  §  167.  By  an  amend- 
ment in  1852,  injuries  to  persons  and  property  were  put  in  the 
same  class.  But  by  section  484  of  the  Code  of  Civil  Procedure 
they  are  again  placed  in  different  classes,  and  cannot  be  united. 
If  the  plaintiff's  cause  of  action  is  single,  into  what  class  does  it 
fall?  Is  it  for  an  injury  to  the  person,  which  may  be  united 
with  other  causes  of  action  for  personal  injuries,  or  is  it  for 
injury  to  property,  which  may  be  joined  with  claims  of  the 
same  nature,  or  is  it  sui  generis,  a  nondescript  which  must  stand 
alone  ? 

While  some  of  the  difficulties  in  the  joinder  of  a  claim  for 
injury  to  the  person  and  one  for  the  injury  to  the  property  in 
one  cause  of  action  are  created  by  our  statutory  enactments,  the 
history  of  the  common  law  shows  that  the  distinction  between 
torts  to  the  person  and  torts  to  property  has  always  obtained. 


Sec.  1.]  Splitting  ^ysTD  Consolidation.  27 

Lord  Justice  Bowen,  in  the  Bninsden  case,  has  pointed  out  that 
there  is  no  authority  in  the  books  for  the  proposition  that  a 
recovery  Tor  trespass  to  the  person  is  a  bar  to  an  action  for  tres- 
pass to  goods,  or  vice  versa.  It  is  true  that  at  common  law  the 
necessity  of  bringing  two  suits  could,  at  the  election  of  the 
plaintiff,  be  obviated  in  some  cases,  as,  for  instance,  by  declaring 
for  trespass  on  the  plaintiff's  close,  and  alleging  in  aggravation 
thereof  an  assault  upon  his  person.  See  Wat.  Tresp,  205,  206. 
Still  in  such  a  case  there  would  be  but  a  single  cause  of  action, 
to-'wdt,  the  trespass  upon  the  close,  and,  if  the  defendant  jus- 
tified this  trespass,  it  would  be  a  complete  defense  to  the  action ; 
the  personal  assault  being  merely  a  matter  of  aggravation.  Car- 
penter V.  Barber,  44  Vt.  441.  Therefore,  for  reason  of  the  great 
difference  between  the  rules  of  law  applicable  to  injuries  of  the 
person  and  those  relating  to  injuries  to  property,  we  conclude 
that  an  injury  to  person  and  one  to  property,  though  resulting 
from  the  same  tortious  act,  constitute  different  causes  of  action. 
The  judgment  appealed  from  should  be  reversed  and  a  new 
trial  granted;  costs  to  abide  the  event.^ 


CAHOON  V.  BANK  OF  UTICA. 

Court  of  Appeals  of  New  York,  1852.    7  N.  Y.  486. 

Demurrer  to  a  complaint. — The  allegations  contained  in  it 
were,  that  on  the  fourth  day  of  May  1846,  Stephen  W.  Brown 
assigned  to  the  defendant  a  bond  and  mortgage  for  $3000,  be- 
longing to  him  solely  as  collateral  security  for  the  payment  of 
three  promissory  notes  of  $1000  each,  two  of  which  were  made 
by  Brown  alone  and  one  by  Brown  &  Rossiter,  a  firm  of  which 
he  was  a  partner,  and  one-half  of  which  Rossiter  was  bound  to 
pay;  that  the  defendants  had  collected  the  mortgage,  and  that 
the  moneys  received  on  the  collection  after  paying  the  amount 

5  For  a  collection  of  cases  deal-  161;  Ochs  v.  Pub.  Service  Co.,  36 
ing  with  the  causes  of  action  aris-  L.  E.  A.  (N.  S.)  240;  Underwrit- 
ing from  injuries  to  persons  and  ers'  v.  Traction  Co.,  51  L.  K.  A. 
property  or  to  various  kinds  of  (N.  8.)  319;  Ey.  Co.  v.  Berkovitz, 
property  from  the  same  act,  see:  169  Ky.  785  (1916);  Jacobus  v. 
King    V.    E.    E.    Co.    50    L.    E.    A.  Colgate,   217    N.   Y.   235,(1916). 


28  Actions.  [Chap.  I. 

due  upon  the  three  notes,  left  a  surplus  in  their  hands  of  $89.52 ; 
that  the  plaintiffs  on  the  thirtieth  day  of  May  1846,  received 
from  Brown  an  assignment  of  all  his  estate  and  rights  in  action, 
and  that  shortly  after  and  before  the  collection  of  the  moneys 
on  the  bond  and  mortgage  by  the  defendants,  he  died,  and  that 
there  were  no  executors  or  administrators  of  his  estate ;  that 
the  defendants  although  requested  by  the  plaintiffs  had  refused 
to  pay  them  the  surplus  moneys  received  by  them  after  the  pay- 
ment of  the  notes,  and  to  deliver  to  them  the  notes.  The  judg- 
ment demanded  was  for  payment  of  the  $89.42,  and  that  the 
defendants  deliver  to  the  plaintiffs  the  notes. 

The  defendants  assigned  as  causes  of  demurrer:  1st.  That 
several  causes  of  action  have  been  improperly  united  in  said 
complaint;  that  is  to  say  a  cause  of  action  for  the  recovery  of 
a  certain  amount  of  money  due  by  contract  from  the  defendants, 
and  a  cause  of  action  to  procure  the  delivery  to  the  said  plain- 
tiffs of  certain  promissory  notes  in  the  said  complaint  men- 
tioned. *  *  *  Plaintiff  appealed  from  an  order  sustaining 
the  demurrer.® 

Johnson,  J,  The  ground  on  which  this  case  ought  to  be  put 
is,  that  the  complaint  does  not  contain  two  causes  of  action. 
The  claim  is  single.  It  stands  substantially  in  the  same  position 
as  if  Brown  himself  were  plaintiff.  The  gist  of  it  is,  that  Brown 
had  placed  in  the  possession  of  the  Bank  of  Utica  a  mortgage, 
the  proceeds  to  be  applied  to  pay  three  notes,  one  made  by 
Brown  &  Rossiter  and  the  others  by  Brown,  and  the  surplus  to 
be  returned  to  him.  His  assignees  now  seek  an  account  of  the 
proceeds  of  the  mortgage  and  of  their  disposition,  and  to  have 
the  balance  paid  over  and  the  notes  which  are  satisfied  delivered 
up.  It  is  no  answer  to  say  that  the  balance  of  moneys  could 
have  been  recovered  in  an  action  for  money  had  and  received. 
It  w^ould  none  the  less  have  been  the  proper  foundation  for  a 
bill  in  equity.  Suppose,  instead  of  a  single  security  transferred 
to  secure  debts  to  a  single  person,  twenty  different  securities  had 
been  transferred  to  the  bank  to  secure  debts  due  to  twenty  dif- 
ferent persons,  does  any  one  doubt  that  the  remedy  would  be 
in  equity?     It  is  only  because  there  is  no  dispute  about  the 

6  statement  condensed  and  the  causes  of  action  which  ought  to 
dissenting  opinion  of  Jewett,  J.,  have  been  separately  stated,  omit- 
to  tl'.e   effect   that  there   were  two      ted. 


Sec.  1.]  Splitting  and  Consolidation.  29 

amount  due  that  there  seems  to  be  any  room  for  mistake  as  to 
the  character  of  the  claim.  If  that  remained  to  be  ascertained 
it  would  be  the  clearest  possible  case  for  an  account;  and  yet 
this  case  is  not  clearer  than  that  before  us.  For  surely  the  ac- 
cidental circumstance  of  the  absence  of  a  dispute  as  to  the 
amount,  can  hardly  be  deemed  to  alter  the  value  of  the  party's 
right. 

Considering  this  proposition  to  be  established,  it  remains  to 
say  a  few  words  in  regard  to  the  claim  to  have  the  notes  de- 
livered up.  Whatsoever  may  be  the  case  as  to  Bro^vn's  o^vn 
notes,  he  had  a  clear  interest  to  require  possession  of  the  note 
of  Brown  &  Rossiter,  in  order  to  be  able  to  use  it  as  a  voucher 
in  stating  an  account  with  Rossiter,  and  therefore  having  ex- 
tinguished it  by  his  own  means,  he  had  also  a  clear  right  to  have 
the  note  delivered  up.  It  is  in  short  a  complaint  by  a  debtor 
to  have  his  obligation  delivered  up  and  canceled,  and  an  ac- 
count of  the  securities  pledged  for  them,  and  payment  of  the 
overplus.  That  a  claim  so  simple  in  its  character,  so  well  rec- 
ognized and  even  familiar  under  the  old  practice  in  chancery, 
should  be  seriously  regarded  as  two  distinct  causes  of  action  re- 
quiring distinct  modes  of  trial,  and  incapable  of  being  joined 
in  a  single  suit  is  quite  as  surprising  as  the  doctrine  itself  if  held 
to  be  well  founded  would  be  inconvenient. 

Judgment  reversed. 


LATTIN  V.  McCARTY. 

Court  of  Appeals  of  New  York,  1869.    41  N.  Y.  107. 

Appeal  by  the  plaintiff  from  a  judgment  of  the  General  Term 
of  the  Supreme  Court  in  the  fifth  district,  affirming  a  judgment 
of  the  Special  Terra,  sustaining  a  demurrer  to  the  complaint. 
The  demurrer  was  at  first  stricken  out  as  frivolous  at  Special 
Term  in  the  seventh  district ;  but  on  appeal  to  the  General  Term, 
this  was  reversed  (17  How.,  140),  and  the  demurrer  then  argued 
at  the  Special  Term  in  the  fifth  district  with  the  result  already 
stated. 

A  deed  of  certain  premises  in  the  city  of  Auburn,  was  ex- 
ecuted by  E.  Corning,  to  the  defendant,  Michael  McCarty,  at 


30  Actions.  [Chap.  I. 

the  request  of  Stanford,  who  had  purchased  the  premises  of 
McCarty,  and  for  the  sole  purpose  of  completing  bis  (Stan- 
ford's) claim  of  title. 

This  deed  Avas  delivered  to  Stanford  (and  never  to  MeCarty), 
with  that  intent,  and,  by  Stanford  deposited  for  record  in  the 
clerk's  office. 

At  this  time  Stanford  had  mortgaged  to  Fitch  &  Griswold, 
who  had  foreclosed  and  conveyed  to  Lattin,  the  plaintiff,  who 
had  repaired  the  premises  and  put  in  a  tenant. 

McCarty  somehow  heard  that  there  was  a  deed  from  Corning 
to  him,  recorded  in  the  office;  and  he  went  to  the  tenant  and 
bribed  him  to  leave,  took  possession  himself,  now  holds  adversely 
to  plaintiff,  and  claims  to  own  the  premises  by  virtue  of  that 
deed. 

McCarty 's  former  interest  in  the  premises,  was  under  a  co)i- 
tract  from  Corning  to  him;  and  in  selling  out  to  Stanford  hp 
had  only  assigned  the  contract,  and  Stanford,  thinking  McCarty 
had  deeded  to  him,  originated  the  mistake  in  getting  a  deed  and 
recording  the  deed  from  Corning  to  McCarty.  These  facts  were 
set  up  in  detail  in  the  complaint. 

The  relief  asked  for  by  plaintiff  is : 

1st.    Possession. 

2d.  A  conveyance  of  McCarty 's  apparent  title,  by  quit  claim 
or  otherwise,  etc.,  and  that  he  be  forever  barred  from  setting 
up  or  asserting  his  pretended  title. 

McCarty 's  demurrer  is  on  the  ground: 

1st.  That  the  complaint  does  not  set  out  facts  sufficient  to 
constitute  a  cause  of  action. 

2d.    That  there  is  a  defect  of  parties  defendants, 

3d.  That  several  separate  and  distinct  causes  of  actions  have 
been  improperly  united. 

Hunt,  Ch.  J.  The  demurrer  of  the  defendant,  McCarty,  was 
sustained,  on  the  ground  that  inconsistent  causes  of  action  were 
included  in  the  complaint.     This  decision  was  erroneous. 

1.  The  complaint  contains  but  a  single  cause  of  action,  to- 
wit: — For  relief  against  the  deed  under  which  McCarty  fraud- 
ulently obtained  possession.  It  is  quite  true  that  while  the  pur- 
pose of  the  complaint  is  single,  it  seeks  to  accomplish  that  result 
by  several  operations.  It  seeks  to  have  the  fraudulent  deed  set 
aside,  and  when  that  is  done,  it  will  follow  that  the  plaintiff 
shall  be  awarded  the  possession  of  the  property.     The  first  is  a 


Sec.  1.]  Splitting  and  Consolidation.  31 

means  simply  of  ohtaining  the  second.  The  one  is  the  cause  of 
action ;  the  other  is  the  fruit  of  the  action.  It  is  said  that  the 
two  causes  of  action  are: — First,  to  vacate  the  fraudulent  deed, 
and  second,  an  action  of  ejectment  to  obtain  the  possession  of 
the  premises.  Not  so.  The  plaintiff  has  no  legal  title  to  the 
premises,  and  admits  that  he  cannot  sustain  an  action  of  eject- 
ment for  that  reason.  His  cause  of  action  is  simply  to  vacate 
the  deed.  Tf  tlk^t  is  done,  he  insists,  as  a  result,  that  the  court 
will  at  once  av;ard  him  the  possession  of  the  property.  It  would 
be  unreascna])le,  he  argues,  to  compel  him  to  resort  to  another 
action  to  olitain  that  to  which  he  is  clearly  entitled,  and  which 
the  court  may  award  in  the  action  before  it.  I  think  the  rea- 
soning sound.'    *    *     • 

Judgment  reversed. 


KABRICH  V.  STATE  INSURANCE  CO. 

Court  of  Appeals  of  Missouri,  1892.    48  Mo.  App.  393. 

Gill,  J.  On  November  5,  1888,  the  defendant  by  its  policy 
insured  for  the  period  of  one  year  one  "W.  G.  Nicum  against  loss 
or  damage  by  fire  on  his  farm  house,  in  Audrain  county,  ' '  loss  if 
any,  payable  to  George  Kabrich,  mortgagee,  as  his  interest  may 
appear."  On  Aug.  18,  1889,  the  building  was  destroyed  by  fire. 
Subsequently,  the  mortgagee  Kabrich  brought  this  suit.  In  his 
petition,  and  all  in  one  count,  in  addition  to  the  common  allega- 
tions common  to  actions  at  law  on  the  contract  of  insurance,  it 
was  further  alleged  that  certain  conditions  printed  in  the  body 
of  the  policy  and  relating  to  the  occupancy,  transfer  of  the 
property,  etc.,  were  wrongfully,  fraudulently,  or  by  mistake  in- 
serted, and  the  court  was  asked  to  strike  out  such  conditions, 
and  reform  the  instrument.  The  defendant  moved  and  the 
court  required  the  plaintiff  to  elect  upon  which  of  the  two  causes 
of  action,  thus  set  out  in  one  count,  he  would  proceed  to  trial. 
The  plaintiff  elected  to  try  the  action  at  law  on  the  policy,  and 
thereupon  the  court  struck  out  the  matter  relating  to  the  ref- 
ormation of  the  contract. 

t  In  the  omitted  part  of  the  stated  two  causes  of  action  the 
opinion  it  was  held  that  even  on  code  permitted  them  to  be  joined, 
the  assumption  that  the  complaint 


32  Actions.  [Chap.  I. 

Among  other  matters  of  defense,  the  answer  set  out  that  by 
the  terms  of  the  policy  if  the  title  of  the  property  was,  after  the 
issuing  thereof,  transferred  or  changed  without  the  written  con- 
sent of  the  company  indorsed  on  the  policy,  then  said  policy 
should  be  void.  The  evidence  showed  unquestionably  that  about 
two  months  after  the  policy  was  issued  the  assured  Nicum  did 
sell  and  convey  the  property  to  one  Kelley,  and  to  this  the  de- 
fendant company  had  not  consented,  nor,  indeed,  had  any  no- 
tice. At  the  close  of  the  evidence  the  court  instructed  the  jury 
as  follows:  "The  court  instructs  the  jury  that  the  deed  read 
in  evidence,  from  W.  G.  Nicum  to  Julia  Kelley,  conveyed  the 
property  insured  after  the  issue  of  the  policy,  and  before  the 
fire,  and  that  fact,  under  the  terms  of  the  policy,  rendered  it 
void,  as  the  company  failed  to  consent  thereto  in  writing,  and 
the  jury  will,  therefore,  render  a  verdict  for  defendant." 

From  a  verdict  and  judgment  for  defendant  the  plaintiff 
appealed. 

The  court  correctly  required  plaintiff  to  elect  upon  which  of 
the  two  causes  of  action,  stated  in  one  count  of  the  petition,  he 
would  proceed  to  trial.  Clearly  plaintiff  had  intermingled  in 
the  one  count  two  causes  of  action ;  one  to  reform  the  policy, 
which  was  equitable,  and  triable  alone  before  the  court,  and  the 
other  an  action  at  law  on  the  policy,  which  was  triable  by  a  jury. 
While  the  code  permits  the  joining  of  legal  and  equitable  suits, 
yet  they  must  be  separately  stated  and  relief  separately  prayed, 
so  that  each  may  be  separately  tried,  the  one  by  the  court,  and 
the  other,  if  desired,  by  the  jury.  Henderson  v.  Dickey,  50  Mo. 
161.  He  might  with  propriety  have  amended  his  petition  and 
separated  the  two  causes  into  two  distinct  counts,  and  then 
tried  each  separately.  But  he  failed  to  amend,  and  chose  to 
submit  his  case  on  the  one  count, — the  legal  action  on  the  policy ; 
thereby  in  effect  abandoning  the  cause  in  equity.  Electing  to 
prosecute  one  of  the  two  causes  of  action  (which  have  been  erro- 
neously combined  in  one  count)  is  necessarily  the  abandonment 
of  the  other.  The  plaintiff  then  having  relinquished  the  suit  to 
reform  the  policy,  he  was  not  entitled  to  introduce  evidence  only 
pertinent  thereto ;  and,  hence,  the  court  did  not  err  in  excluding 
such  proffered  evidence.  And  this  answers  counsel's  point  num- 
ber 2.    *    *    * 

Judgment  affirmed. 


Sec.  1.]  Splitting  and  Consolidation.  33 

WHETSTONE  v.  BELOIT  STRAW  BOARD  CO. 

Supreme  Court  of  Wisco7isin,  1890.    76  Wis.  613. 

Orton,  J.  The  plaintiff  alleged  in  his  complaint  that  he  was 
employed  in  and  about  the  shop  or  building  in  which  the  defend- 
ant manufactured  straw  building  board  by  the  use  of  dangerous 
steam  machinery,  and  by  the  use  of  steam  rotaries  made  of  boil- 
er iron,  which  were  in  an  unsafe  and  dangerous  condition,  to 
the  knowledge  of  the  defendant,  or  which  it  might  have  known 
by  reasonable  care,  and  which  was  unknown  to  the  plaintiff,  and 
that,  by  reason  of  their  unsafe  and  dangerous  condition,  one  of 
them  burst  or  exploded,  and  scattered  the  fragments  thereof 
about  said  building,  some  of  which  struck  the  plaintiff,  and  in- 
jured him  very  greatly,  and  caused  him  to  be  in  such  a  condi- 
tion of  mind  that  he  did  not  know  what  he  was  doing,  and  could 
not,  and  did  not,  realize  his  situation,  or  appreciate  the  effect  of, 
or  carry  on,  any  business  transaction.  And  the  plaintiff,  alleged 
further,  that  while  he  was  in  such  condition  of  body  and  mind, 
the  defendant,  through  its  officers  and  agents  procured  and  in- 
duced him  to  sign  a  certain  receipt,  set  out  in  the  complaint,  by 
which  he  released  the  defendant  forever  from  all  liability  by 
reason  of  any  and  all  injuries  sustained  by  him  as  aforesaid,  or 
any  result  therefrom,  and  from  all  actions,  or  causes  of  action, 
against  the  defendant  by  reason  thereof;  that,  at  the  time  of 
signing  said  instrument,  he  (the  plaintiff)  was  not  in  a  condi- 
tion to  realize  what  he  was  doing,  or  the  effect  thereof ;  and  that 
the  defendant  took  advantage  of  his  condition,  and  procured  the 
said  instrument  by  fraud.  The  plaintiff  prayed  judgment  for 
$20,000  damages,  and  that  said  receipt  or  release  be  declared 
void  and  delivered  up.  This  is,  substantially,  the  complaint. 
The  defendant  demurred  to  the  complaint,  (1)  that  in  it  several 
causes  of  action  were  improperly  united;  and  (2)  that  it  did 
not  state  facts  sufficient  to  constitute  a  cause  of  action.  The  de- 
murrer was  overruled.  The  fii-st  ground  was  the  only  one 
pressed  on  the  argument.  The  learned  counsel  of  the  appellant 
contended  that  the  matter  of  the  release  constituted  a  separate 
and  distinct  cause  of  action  that  could  not  be  joined  with  the 
main  action. 

It  is  quite  ob\'ious  that  the  complaint  states  only  one  cause  of 
action.    The  matter  of  the  release  is  simply  ancillary  to  the  ac- 


34  Actions.  [Chap.  I. 

tion.     It  is  merely  to  set  aside  the  release,  which  stood  in  the 
way  of  recovery  in  the  action.    It  is  subservient  or  subsidiary  to 
the  action,  and  is  necessary  to  a  recovery.     The  plaintiff  might 
have  waited  for  the  defendant  to  set  up  the  release  in  defense, 
and  then  have  attacked  it  by  a  replication ;«  but  he  chose  to  set 
it  up  in  his  complaint  and  avoid  it,  which  is  strictly  correct  plead- 
ing.   Lusted  V.  Railway  Co.,  71  "Wis.  391,  36  N.  W.  Rep.  837.  In 
that  case  the  receipt  was  set  up  in  the  answer,  and  the  issue 
thereon  was  first  tried.     In  Damon  v.  Damon,  28  Wis.  510,  the 
plaintiff  first  set  up  her  causes  for  a  divorce,  and  secondly  asked 
for  alimony,  and  thirdly  prayed  that  a  certain  deed  made  by  the 
defendant  to  a  third  person  in  fraud  of  her  rights  be  set  aside, 
and  such  third  person  was  made  a  party.     The  defendant  de- 
murred for  misjoinder  of  causes  of  action,  as  here.    This  court 
held  that  there  was  but  one  cause  of  action,  and  that  the  matter 
of  setting  aside  the  deed  was  to  enable  the  court  to  enforce  its 
judgment  of  alimony,  if  it  adjudges  a  transfer  of  property  to 
the  plaintiff,  and  that  it  is  only  ancillary  or  incident  to  the  action. 
That  is  a  stronger  case  of  two  separate  causes  of  action  than 
here.     In  Moon  v.  McKnight,  54  Wis.  551,  11  N.  W.  Rep.  800, 
the  action  was  against  A  and  B,  who  are  husband  and  wife,  and 
H,  who  held  a  mortgage  of  land  from  B,  to  have  a  prior  deed 
from  A  and  B  to  plaintiff,  absolute  on  its  face,  declared  a  mort- 
gage; to  have  a  subsequent  recorded  deed,  purporting  to  have 
been  executed  by  the  plaintiff  to  B,  conveying  to  her  the  same 
land,  set  aside  as  a  forgery;  and  to  have  the  plaintiff's  mortgage 
foreclosed  against  all  the  defendants.     This  complaint  was  also 
domurred  to  for  improper  joinder  of  separate  causes  of  action. 
This  court  held  that  there  was  virtually  but  one  cause  of  action. 
These  apparently  separate  causes  of  action,  and  the  relief  there- 
in, ''were  essential  and  a  prerequisite  to  the  plaintiff's  fore- 
closure. ' '    They  were  obstructions  to  the  main  relief,  and  had  to 
be  removed  to  make  the  plaintiff's  judgment  of  foreclosure  ef- 
fectual.   Many  other  like  cases  might  be  cited,  if  it  was  not  too 
plain  a  question  for  argument  or  authority.     The  order  of  the 
circuit  court  is  affirmed,  and  the  case  remanded  for  further  pro- 
ceedings according  to  law. 

8  But  see  Hancock  v.  Blaekwell,  at   law   can  be   maintained.     And 

139  Mo.  440,  to  the  effect  that  in  so    in    Mclsaac    v.    McMurray,    77 

such  cases  the  release  must  be  set  N.  H.  466   (1915),  post, 
aside   in   equity   before    an   action 


Sec.  1.]  Splitting  and  Consolidation.  35 

IMPERIAL  SHALE  BRICK  CO.  v.  JEWETT. 

Court  of  Appeals  of  New  York,  1901.    169  N.  Y.  143. 

Appeal  from  an  order  of  the  Appellate  Division  of  the  Su- 
preme Court  in  the  fourth  judicial  department,  entered  July 
28,  1899,  reversing  a  judgment  in  favor  of  plaintiff  enterea 
upon  a  decision  of  the  court  on  trial  at  Special  Term  and  grant- 
ing a  new  trial. 

The  nature  of  the  action  and  the  facts,  so  far  as  material,  are 
stated  in  the  opinion. 

Landon,  J.  The  plaintiff  brought  this  action  to  reform  a  con- 
tract of  insurance,  and,  as  reformed,  to  recover  against  the  19 
defendants  as  joint  insurers  of  a  cargo  of  pressed  bricks  shipped 
by  plaintiff  at  Cleveland,  Ohio,  about  October  2,  1895,  to  Wau- 
kegan,  111.  The  cargo  became  a  total  loss,  and  did  not  reach  its 
destination.    *    *    * 

The  defendants  complain  that,  against  their  objection  and 
exception,  the  action  was  tried  at  the  equity  term,  instead  of  be- 
fore a  jury.  The  plaintiff  applied  for  insurance  upon  its  cargo 
in  transit  by  lake  from  Cleveland,  Ohio,  to  Waukegan,  111.  By 
mistake,  Waukegan,  Mich.,  was  written  in  the  certificate,  and  not 
observed  by  the  plaintiff  until  after  the  loss.  There  is  no  such 
port  as  Waukegan,  IVIich.  The  plaintiff  properly  asked  in  its 
complaint  to  have  the  certificate  corrected  in  this  respect.  If  the 
defendants  had  admitted  by  their  answer  the  statement  of  facts 
alleged  in  this  behalf  in  the  complaint,  as  they  did  upon  the 
trial,  the  equitable^  issue  would  not  have  arisen;  but  they  did 
not,  but  interposed  a  denial,  and  thus  the  case  properly  came  on 
for  trial  at  the  equity  term.  The  complaint  does  not  contain 
separate  equitable  and  legal  causes  of  action,  but  it  asks  such  re- 
lief in  equity  as  would,  if  granted,  permit  a  recovery  as  at  com- 

9  Peckham,  J.,  in  Linton  v.  Fire  out    as   the    exponent    of   the    oral 

Works  Co.,  128  N.  Y.  672,   (1891):  understanding  of  the  parties.  While 

*      *      »      <<"W"e    do    not,    however,  it  exists  as  a  full  and  legal  agree- 

think  that  relief  could  be  had  by  ment,  it  must  control  as  to  all  the 

reference  only  to  the  original  oral  terms   expressed   in   it,   and,   when 

contract,  and  in  spite  of  the  terms  such    terms    differ    from    those    of 

of    the     subsequent     written     one,  prior   oral   ones,   the   writing   must 

without     reforming     such     written  control.     It  is  necessary,  therefore, 

one  so  as  to  coniform  to  the  truth.  to  reform  it   so   as   to   express  the 

A   written   contract   is   always   set  true   agreement." 


36 


Actions. 


[Chap.  I. 


mon  law.  But  the  complaint  stated  no  common  law  cause  of 
action,  except  as  conditioned  upon  the  equitable  relief,  and 
hence  the  right  to  recovery  rested  primarily  upon  equitable 
grounds.  The  court,  having  obtained  jurisdiction  in  equity  may, 
if  it  grant  the  equitable  relief,  retain  jurisdiction,  and  render  that 
further  jjidgment  which  properly  follows  thereupon-^"  Wheel- 
ock  V.  Lee,  74  N.  Y.  496,  cited  by  defendants,  was  precisely  the 
reverse.  In  that  case,  there  were  four  causes  of  action  at  law 
for  the  recovery  of  money.  Conditioned  upon  such  recovery 
was  the  demand  that  certain  securities  be  surrendered.  Of 
course,  in  such  a  case,  success  in  the  actions  at  law  is  a  condition 
precedent  to  any  equitable  relief,  and  the  joinder  of  the  former 
with  the  latter  ought  not  to  deprive  the  defendant  of  a  jury 
trial  of  the  former. 

We  have  examined  the  other  errors  assigned  by  the  defend- 
ants, but  do  not  think  any  of  them  justify  the  reversal  of  the 


10  Nelson,  J.,  in  Tayloe  v.  Insur- 
ance Co.  9  How.  390,  (U.  S.  Sup. 
1850): 

"The  party,  therefore,  had  a 
right  to  resort  to  a  court  of  equity 
to  compel  the  delivery  of  the  pol- 
icy, either  before  or  after  the 
happening  of  the  loss;  and  being 
properly  in  that  court  after  the 
loss  happened,  it  is  according  to 
the  established  course  of  proceed- 
ing, in  order  to  avoid  delay  and 
expense  to  the  parties,  to  proceed 
and  give  such  final  relief  as  the 
circumstances  of  the  case  demand. 

Such  relief  was  given  in  the 
case  of  Motteux  v.  London  Assur- 
ance Company  (1  Atk.,  545),  and 
in  Perkins  v.  Washington  Insur- 
ance Company  (4  Cow.,  645).  (See, 
also,  1  Duer.,  66  and  110,  and  2 
Phillips,  583.) 

As  the  only  real  question  in  the 
case  is  the  one  which  a  court  of 
equity  must  necessarily  have  to 
decide,  in  the  exercise  of  its  pecu- 
liar jurisdiction  in  enforcing  a 
specific  execution  of  the  agreement, 
it    would    be    an    idle    technicality 


for  that  court  to  turn  the  party 
over  to  his  remedy  at  law  upon 
the  policy.  And,  no  doubt,  it  was 
a  strong  sense  of  this  injustice 
that  led  the  court  at  an  early  day 
to  establish  the  rule,  that,  having 
properly  acquired  jurisdiction  over 
the  subject  for  a  necessary  pur- 
pose, it  was  the  duty  of  the  court 
to  proceed  and  do  final  and  com- 
plete justice  between  the  parties, 
where  it  could  as  well  be  done  in 
that  court  as  in  proceedings  at 
law."     *     *     * 

And  so  in  Bidwell  v.  Astor  Ins. 
Co.,  16  N.  Y.  263,  (1857).  *  *  * 
"There  was  nothing  in  the  objec- 
tion that  the  court  should  have 
stopped  with  reforming  the  policy, 
and  turned  the  plaintiffs  over  to  a 
new  action  to  recover  their  dam- 
ages. The  rule  of  courts  of  equity 
was,  when  they  had  acquired  juris- 
diction, and  had  the  whole  merits 
before  them,  to  proceed  and  do 
complete  justice  between  the  par- 
ties. (Perkins  v.  Washington  Ins. 
Co.,   4   Cow.,  645)"      *      *      *. 


Sec.  1.]  Splitting  and  Consolidation.  37 

judgment  of  the  trial  term  except  as  to  the  defendant  Hickman. 
The  order  of  the  Appellate  Division  should  be  reversed,  with 
costs,  and  judgment  of  the  trial  court  affirmed,  except  as  to  the 
defendant  Hickman,  and,  as  to  him,  order  affirmed,  and  judg- 
ment absolute  ordered  in  his  favor  on  the  stipulation,  with 
costs.^^ 


SOUTH  BEND  CHILLED  PLOW  CO.  v.  GEORGE  C.  CRIBB 

CO. 

Supreme  Court  of  Wisconsin,  1900.    105  Wis.  443. 

Appeals  from  the  Circuit  Court  for  Milwaukee  county,  from 
orders  overruling  separate  demurrers  to  the  complaint,  each 
grounded  on  the  proposition  that  such  complaint  states  several 
causes  of  action  that  cannot  be  properly  joined.  The  complaint, 
by  appropriate  allegations,  sets  forth  that  each  of  the  plaintiffs 
is  a  creditor  of  the  defendant  corporation,  the  George  C.  Cribb 
Company ;  the  amount  of  the  indebtedness  as  to  each ;  that  the 
action  is  brought  in  behalf  of  the  plaintiffs  as  creditors  of  such 
corporation  and  of  all  persons  similarly  situated ;  that,  after  the 
indebtedness  mentioned  accrued,  the  officers  and  directors  of  the 
corporation,  named  as  defendants,  in  breach  of  their  duties  as 
such  to  the  corporation,  wasted  and  misapplied  its  assets  and 
converted  the  same  to  their  own  use  and  to  the  use  of  the  defend- 
ant corporation,  the  Cribb  Carriage  Company,  which  last-named 
corporation  is  alleged  to  have  been  formed  by  such  officers  and 
directors  in  aid  of  a  scheme  formed  by  them  to  remove  the  assets 
of  the  George  C.  Cribb  Company,  without  consideration,  from 
its  control  and  beyond  the  reach  of  its  creditors,  which  scheme 
was  carried  out,  leaving  the  debtor  corporation  wholly  insolvent. 
All  the  various  steps  resorted  to,  to  effect  the  scheme  above 
stated,  are  set  forth  in  the  complaint,  together  making  a  good 
cause  of  action  in  equity  at  the  suit  of  creditors,  against  the 
officers  of  the  George  C.  Cribb  Company  and  the  coj-poration 
and  persons  who  fraudulently  obtained  the  property  of  such 

11  Th.it    a   complaint   seeking   to       see    Hutchinson    v.    Ainsworth,    73 
reform    a    mortgage    and    foreclose      Cal.  452,   (1887). 
it.  states  a  single  cause  of  action, 


38   /  Actions.  [Chap.  I. 

co/npany  as  alleged,  or  some  part  thereof,  to  set  aside  the  alleged 
fraudulent  transfers  and  compel  an  accounting  by  such  officers 
of  their  official  management  of  the  affairs  of  the  corporation 
so  far  as  necessary  to  protect  the  plaintiffs  as  creditors  and 
protect  all  other  persons  similarly  interested.  The  complaint 
contains  a  prayer  for  relief  to  that  effect,  and,  in  addition,  for 
judgment  against  the  George  C.  Cribb  Company  in  favor  of 
the  South  Bend  Chilled-Plow  Company  for  the  amount  claimed 
to  be  due  it,  and  similar  judgments  in  favor  of  the  St.  Paul 
Plow  Company  and  the  Western  Wheeled-Scraper  Company 
respectively. 

Marshall,  J.  The  complaint,  in  all  essential  parts,  is  the 
same  as  that  considered  on  the  first  appeal  in  this  case,  reported 
in  97  Wis.  230,  72  N.  W.  749.  While  the  question  here  raised 
was  not  presented  for  consideration  there,  it  was  necessarily 
involved  and  was  decided  in  reaching  the  conclusion  upon  which 
the  decision  was  grounded;  and  the  result  is  therefore  res  ad- 
jiidicata  of  the  same  question,  presented,  as  it  now  is,  as  the 
primary  subject  for  adjudication.    *    *    * 

Notwithstanding  the  foregoing,  some  observations  on  the 
merits  of  the  question  presented  will  not  be  out  of  place,  and 
may  be  helpful  in  other  cases. 

As  has  often  been  said  by  this  court,  the  test  of  whether  there 
is  more  than  one  cause  of  action  stated  in  a  complaint  is  not 
whether  there  are  different  kinds  of  relief  prayed  for  or  objects 
sought,  but  whether  there  is  more  than  one  primary  right  sought 
to  be  enforced  or  one  subject  of  controversy  presented  for  ad- 
judication. Gager  v.  Marsden,  101  Wis.  598,  77  N.  W.  922.  In 
every  cause  of  action  there  must  exist  a  primary  right,  a  cor- 
responding primary  duty,  and  a  failure  to  perform  that  duty. 
The  result  may  be,  and  often  is,  that  the  wronged  party  is  en- 
titled to  several  kinds  of  relief.  The  fact  that,  in  such  circum- 
stances, in  his  action  to  enforce  the  right  denied,  the  plaintiff 
prays  for  full  relief,  combining  several  elements  or  objects,  does 
not  render  the  complaint  open  to  demurrer  on  the  ground  of 
multifariousness.  In  testing  a  complaint  to  determine  whether 
it  is  single  or  double  as  regards  primary  rights,  the  different 
objects  in  view  by  the  pleader,  as  indicated  by  the  prayer  for 
relief,  are  not  controlling.  They  are  of  no  significance  what- 
ever, except  to  aid  in  construing  the  allegations  of  the  pleader 
and  in  clearing  up  obscurities  that  may  exist,  as  to  whether  he 


Sec.  2.]  One  Form  op  Action.  39 

intended  to  state  facts  showing  a  violation  of  distinct  primary 
rights,  or  not.  When  there  is  no  obscurity  in  that  regard,  the 
statement  of  facts  upon  which  the  prayer  for  relief  is  based 
alone  speaks,  and  if  the  language  shows  presentation  for  ad- 
judication of  a  single  controversy,  it  cannot  be  enlarged  by  what 
follows  in  the  prayer  for  relief  even  though  it  be  appropriate 
to  several  distinct  causes  of  action. 

Applying  what  has  been  said  to  the  pleading  in  this  case,  but 
one  cause  of  action  can  be  discovered  which  the  pleader  is  seek- 
ing to  enforce,  and  that  is  to  compel  the  officers  of  the  George 
C.  Cribb  Company  to  account,  for  their  official  conduct  in  the 
management  and  disposition  of  the  funds  and  property  of  the 
corporation,  for  the  benefit  of  its  creditors.  That  involves,  nec- 
essarily, an  adjudication  as  to  the  amount  of  the  claims  of  the 
respective  creditors,  whether  plaintiffs  or  defendants,  and  the 
rights  of  parties  who  are  the  guilty  participants  with  the  officers 
of  the  corporation  in  fraudulently  disposing  of  or  wasting  its 
property.  The  facts  pleaded  show  a  single  cause  of  action,  as 
indicated,  with  such  clearness  that  the  scope  of  the  prayer  for 
relief  cannot,  by  any  rule  of  construction,  change  it  to  a  state- 
ment of  two  primary  rights  violated  and  the  presentation  of  two 
primary  controversies  for  adjudication.  The  result  is  that  the 
orders  appealed  from  must  be  affirmed. 


Section  2.    One  Form  of  Action. 
Code  of  Civil  Procedure  of  New  York. 
§  3339.^    There  is  only  one  form  of  civil  action.    The  distinc- 

1  In  a  number  of  the  codes,  the  fornia,    Code    Civ.    Proc,    1915,    § 

corresponding   provision   omits   the  307;    Colorado,    E.    S.,    1908,    §    1; 

clause    abolishing    the    distinction  Connecticut,    Gen.    Stat.,    1918,    § 

between   actions   at   law   and   suits  5630;     Idaho,    Comp.    Stat.,     1919, 

in  equity.     For  the  exact  wording,  §  6591;  Indiana,  Burns  Ann.  Stat., 

see:     Alaska,  Code  Civ.  Proc.  1900,  1914,    §    249;    Iowa,    Comp.    Code, 

§    1;    Arizona,   E.   S.    1913,    §    425;  1919    §    7059    (It   is   also   provided 

Arkansas,  Dig.  Stat.,  1919,   §   1030  that  proceedings  are  of  two  kinds, 

(by  §  1033  it  is  provided  that  pro-  ordinary    and    equitable);    Kansas, 

ceedings  in  a  civil  action  may  be,  Gen.  St;it.,  1915,  §  6900;  Kentucky, 

1,  at  law,  and  2,  in  equity);  Cali-  Eev   Code,   1900,  §   4,   (by  §  5  ac- 


40 


Actions. 


[Chap.  I. 


tidn^  between  actions  at  law  and  suits  in  equity,  and  the  forms 
of  those  actions  and  suits,  have  been  abolished. 


tions  are  ordinary  or  equitable) ; 
Minnesota,  Gen.  Stat.,  1913,  §  7673; 
Missouri,  R.  S.,  1919,  §  1153;  Mon- 
tana, Eev.  Code,  1907,  §  6425; 
Nebraska,  Ann.  Stat.,  1911,  §  1001; 
Nevada,  Eev.  Laws,  1912,  §  4943; 
New  Mexico,  Ann.  Stat.,  1915,  § 
4067;  New  York,  Civ.  Practice  Act, 
1920,  Art.  1,  §  8;  North  Carolina, 
Consol.  Stat.,  1919,  §  399;  North 
Dakota,  Comp.  Laws,  1913,  §  7355; 
Ohio,  Gen.  Code,  1921  §  11238; 
Oklahoma,  Eev.  Laws,  1910,  § 
4650;  Oregon,  Code  Civ.  Proc, 
1920,  §  1,  (one  form  of  action  at 
law;  by  §  389  suits  in  equity  are 
retained) ;  South  Carolina,  Code 
Civ.  Proc,  1912,  §  114;  South  Da- 
kota, Eev.  Code,  1919,  §  2260; 
Utah,  Comp.  Laws,  1917,  §  6442; 
Washington,  Eem.  &  Bal.  Code, 
1910,  §  153;  Wisconsin,  Stat.,  1919, 
§  2600;  Wyoming,  Comp.  Stat., 
1920,  §  5555;  United  States,  Equity 
Eules,  1912,  Eule  18,  (abolishing 
technical  forms  of  pleadings  in 
equity). 

2  Selden,  J.,  in  Eeubens  v.  Joel, 
13  N.  Y.  488  (1856):  *  *  * 
What  are  the  distinctions  between 
actions  at  law  and  suits  in  equity? 
The  most  marked  distinction  ob- 
viously consists  in  their  different 
modes  of  relief.  In  the  one,  with 
a  few  isolated  exceptions,  relief 
is  invariably  administered,  and  can 
only  be  administered,  in  the  form 
of  a  pecuniary  compensation  in 
damages  for  the  injury  received; 
in  the  other,  the  court  has  a  dis- 
cretionary power  to  adapt  the  re- 
lief to  the  circumstances  of  the 
ease.  By  what  process  can  these 
two  modes  of  relief  be  made  iden- 
tical? It  is  possible  to  abolish 
one   or   the   other,   or  both,  but   it 


certainly  is  not  possible  to  abolish 
the  distinction  between  them.  The 
legislature  may,  unless  prohibited 
by  the  constitution,  enact  that  no 
court  shall  hereafter  have  power 
to  grant  any  relief,  except  in  the 
form  of  damages,  and  thereby  abol- 
ish all  suits  in  equity;  or  that  all 
courts  shall  have  power  to  mould 
the  relief  to  suit  the  particular 
case,  and  thereby  virtually  abolish 
actions  at  law  as  a  distinct  class. 
To  illustrate  by  a  single  case: 
they  may  provide  that  where  a 
vendor  of  land,  who  has  contracted 
to  sell  and  received  the  purchase 
money,  refuses  to  convey,  the  ven- 
dee shall  have  no  remedy  but  an 
action  for  damages,  or,  on  the 
other  hand,  that  he  shall  be  con- 
fined to  a  suit  for  a  specific  per- 
formance; but  it  is  clearly  beyond 
the  reach  of  their  powers  to  make 
these  two  remedies  the  same.  An- 
other leading  distinction  between 
common  law  actions  and  suits  in 
equity  consist  in  their  different 
modes  of  trial.  The  former  are 
to  be  tried  by  a  jury,  the  latter 
by  the  court.  Can  the  legislature 
abolish  this  distinction?  They 
might,  but  for  the  restraints  of 
the  constitution,  abolish  either 
kind  of  trial,  or  re-classify  the 
classes  to  which  they  apply;  but 
they  cannot  make  trial  by  jury 
and  trial  by  the  court  the  same 
thing.  It  is  plain  that  the  only 
way  in  which  the  declaration  con- 
tained in  §  69,  that  "there  shall 
be  in  this  state  hereafter  but  one 
form  of  action  for  the  enforce- 
ment or  protection  of  private 
rights,  and  the  redress  of  private 
wrongs,"  can  be  made  good,  is  by 
abolishing   both   the   form   of  trial 


Sec.  2.]  One  Form  op  Action.  41 

FARRON  V.  SHERWOOD. 

Court  of  Appeals  of  New  York,  1858.    17  N.  Y.  227.     ' 

Appeal  from  the  superior  court  of  Buffalo.  The  complaint 
was:  "First.  That  the  defendant  is  indebted  to  the  plaintiff 
in  the  sum  of  fourteen  hundred  and  twenty-nine  and  54/100 
dollars,  for  work,  labor  and  services  done  and  performed  for 
the  defendant,  at  his  special  instance  and  request,  at  the  city 
of  Buffalo,  by  the  plaintiff  and  his  servants  and  agents,  at 
divers  times  between  the  8th  day  of  May,  1852,  and  the  com- 
mencement of  this  action,  in  and  about  quarrying,  dressing, 
preparing,  delivering,  putting  together  and  erecting  certain 
building  stones,  in  and  about  defendant's  dwelling  on  Main 
street,  in  said  city  of  Buffalo,  and  that  said  work,  labor  and 
services  were  reasonably  worth  the  sum  of  fourteen  hundred 
and  seventy-nine  and  54/100  dollars;  and  that  the  defendant 
has  not  paid  the  plaintiff  the  said  sum  nor  any  part  thereof, 
but  has  hitherto  wholly  neglected  and  refused  so  to  do.  Second.' 
And,  for  a  second  cause  of  action  against  the  defendant,  the 
plaintiff  says  that  the  defendant  is  indebted -to  him  in  the' sum 
of  thirty-eight  and  4/100  dollars,  for  certain  dressed  building 
stones,  before  the  commencement  of  this  action  sold  and  de"^ 
livered  by  the  plaintiff  to  the  defendant,  at  the  city  of  Buffalo,  at 
defendant's  special  instance  and  request;  that  the  said  building 

and  the   mode   of  relief  in   one   or  dower;  for  waste;  for  a  nuisance; 

the^  other    of    the    two    classes    of  or   to   recover   a   chattel."     N.   Y. 

actions.     When   this   is   done,   and  Code   Civ.   Proc.   §    968. 
not    till    then,    shall    we    have    one  "An  issue  of  law,  inanv  action 

homogenous  form  of  action  for  all  and  an  issue  of  fact,  in  an  action 

cases.     Has^  «ie  legislature   power  not    specified   in    the    last    section, 

to   do  this?"  or    wherein    provision    for    a    trial 

The    code    makes    the    following  by   a   jury   is   not   expressly   made 

provision  for  trial  by  jury  and  for  by  law,  must  be  tried  by  the  court 

trial  by  the  court:  unless  a   reference   or  a  jury  trial 

"In   each    of   the   following   ac-  is    directed."      N.    Y.    Code    Civ. 

tions,    an    issue    of    fact    must    be  Proc.   §    969. 

tried    by    a    jury,    unless    a    jury  Where  an  action  is  strictly  equi- 

trial  is  waived,   or   a  reference   is  table,  there  is  no  right  of  trial  by 

directed:  jury,    though    the    onlv    relief    de- 

1.  An  action  in  which  the  com-  nianded  is  the  recoverv  of  a  sum 
plaint  demands  judgment  for  a  of  money,  Bell  v.  Merrifield,  109 
sum   of  money   only.  N.  Y.  202,   (1888). 

2.  An    action    of   ejectment;    for 


42  Actions.  [Chap.  I. 

stones  were  reasonably  worth  the  sum  of  thirty-eight  and  4/100 
dollars;  and  that  the  defendant  has  not  paid  the  plaintiff  the 
said  sum,  or  any  part  thereof;  but  has  hitherto  wholly  neglected 
and  refused  so  to  do.  Wherefore  the  plaintiff  demands  judg- 
ment against  the  defendant  for  the  sum  of  fifteen  hundred  and 
seventeen  dollars  and  sixty-three  cents,  besides  the  costs  of  this 
action."  The  defendant,  by  his  answer,  denied  each  and  every 
allegation  of  the  complaint.  The  action  was  tried  before  a  ref- 
eree. Upon  the  trial,  the  plaintiff  produced  several  witnesses, 
who  proved  the  work,  labor,  and  materials  specified  in  a  bill  of 
particulars,  furnished  the  defendant,  of  the  plaintiff's  claim, 
and  the  value  of  the  different  items;  and  then  rested.  Where- 
upon the  defendant  proved  payment  of  $1,002,  and  then  proved 
and  read  in  evidence  a  special  contract  between  him  and  the 
plaintiff,  under  which  the  labor,  except  sixty-four  days'  labor, 
worth  $2  per  day,  and  altering  a  buttress,  worth  $6  was  done. 
Upon  the  proof  and  the  pleadings  the  case  was  submitted  to  the 
referee,  "the  defendant  then  and  there  insisting  that  the  plain- 
tiff could  not  recover,  but  for  the  extra  work,  except  upon  the 
special  contract,  which  he  had  neither  stated  in  the  complaint 
nor  proved;"  but  the  referee  overruled  the  objection;  to  which 
the  defendant  excepted.  The  referee  reported  in  favor  of  the 
plaintiff  for  $299.55.  Judgment  having  been  entered  on  the  re- 
port, the  defendant  appealed  to  the  general  term  of  the  superior 
court,  by  which  the  judgment  was  affirmed;  and  the  defendant 
thereupon  appealed  to  this  court. 

Strong,  J.  The  first  point  made  by  the  counsel  for  the  ap- 
pellant is,  that  for  the  portion  of  the  work  and  labor  done  under 
the  special  contract,  the  remedy  of  the  plaintiff  was  upon  that 
contract;  and  that  he  was  not  entitled  to  recover  upon  the  com- 
mon counts.  It  is  necessarily  assumed  in  support  of  this  posi- 
tion that  the  contract  is  the  cause  of  action  for  that  work  and 
labor;  and  if  that  be  so,  the  position  is  correct;  that  cause  of 
action  not  being  stated  in  the  complaint,^  and  the  objection  being 

3  The    complaint    must    contain:  and  the  names   of  all  the  parties 

"1.  The  title  of  the  action,  spec-  to  the  action,  plaintiff  and  defend- 

ifying   the   name    of   the    court   in  ant. 

which  it  is  brought;  if  it  is  brought  "2.  A  plain  and  concise  state- 
in  the  supreme  court,  the  name  of  ment  of  the  facts,  constituting 
the  county,  which  the  plaintiff  each  cause  of  action,  without  un- 
designates   as   the   place    of   trial;  necessary  repetition. 


Sec.  2.]  One  Form  of  Action.  43 

taken  at  the  trial,  the  referee  erred  in  allowing  the  part  of  the 
plaintiff's  claim  in  question.  But  the  assumption  is  wholly  un- 
warranted in  the  case.  It  was  not  objected  at  the  trial  that  the 
contract  had  not  been  fully  performed  on  the  part  of  the  plain- 
tiff; no  question  was  raised,  and,  so  far  as  appears,  there  was 
no  ground  for  any  question  on  that  subject.  Hence  it  must  be 
deemed  that  the  plaintiff  had  done  all  that  was  incumbent  on 
him  to  do,  and  that  nothing  remained  to  be  done  by  the  con- 
tract but  the  payment  of  the  stipulated  price  by  the  defendant. 
The  case  is  therefore  within  the  settled  rule  that  where  there 
is  a  special  agreement  and  the  plaintiff  has  performed  on  his 
part,  the  law  raises  a  duty  on  the  part  of  the  defendant  to  pay 
the  price  agreed  upon,  and  the  plaintiff  may  count  either  on 
this  implied  assumpsit  or  on  the  express  agreement.  A  new 
cause  of  action  upon  such  performance  arises  from  this  legal 
duty,  in  like  manner  as  if  the  act  done  had  been  done  upon  a 
general  request  without  an  express  agreement.  (Lawes'  PI.  5; 
Jewel  V.  Schroeppel,  4  Cow.  564 ;  Feeter  v.  Heath,  11  Wend 
484;  Mead  v.  Degolyer,  16  id.  637,  638;  Clark  v.  Fairchild,  22 
id.  576.)  This  rule  is  not  affected  by  the  code;  the  plaintiff 
might,  as  he  has  done,  rest  his  action  on  the  legal  duty ;  and  his 
complaint  is  adapted  to  and  contains  every  necessary  element  of 
that  cause  of  action.  It  was  not  necessary  to  state  in  terms  a 
promise  to  pay ;  it  was  sufficient  to  state  facts  showing  the  duty 
from  which  the  law  implies  a  promise ;  that  complies  with  the 
requirement  that  facts  must  be  stated  constituting  the  cause  of 
action.     (Allen  v.  Patterson,  3  Seld.  476.) 

The  defendant  was  not  precluded  by  the  form  of  the  com- 
plaint from  setting  up  and  availing  himself  of  any  defense  he 
had  under  the  contract. 

All  the  judges  concurring. 

Judgment  affirmed. 

"3.  A  demand  of  the  judgment  himself  entitled." — N.  Y.  Code 
to    which    the    plaintiff    supposes      Civ.   Proe.   §   481. 


M  Actions.  [Chap.  I. 

EYERMAN  v.  MT.  SINAI  CEMETERY  ASSOCIATION. 

Supreme  Court  of  Missouri,  1876.    61  Mo.  489. 

Wagner,  J.  The  petition  states  that  the  defendant  was  in- 
debted to  the  plaintiff  in  the  sum  of  two  thousand  five  hundred 
and  ninety  dollars  and  ninety-three  cents,  for  work  and  labor 
done  and  materials  furnished,  which  were  then  set  out  at  the 
prices  agreed  upon  in  the  writings  afterwards  referred  to.  It 
was  then  alleged  that  the  work  and  labor  were  done,  and  the 
materials  were  furnished  under  the  terms  and  conditions  of  a 
certain  instrument  of  writing,  executed  by  the  plaintiff  and  de- 
fendant, and 'which  was  produced  and  shown  to  the  court;  that 
plaintiff  kept  and  performed  all  the  terms  and  conditions  of  the 
instrument  of  writing  to  be  kept  and  performed  by  him ;  that 
he  furnished  the  materials  in  the  writing  specified  of  a  proper 
and  suitable  character  and  did  the  work  therein  specified  in  a 
good  and  workmanlike  manner,  all  of  which  was  done  under  the 
supervision  of  the  engineer  of  the  plaintiff  ( ?),  and  accepted  by 
him,  etc.  The  answer  was  a  denial  of  all  the  allegations  in  the 
petition. 

At  the  instance  of  the  plaintiff  the  court  in  effect  declared 
the  law  to  be,  that  altogether  some  of  the  material  was  not  what 
the  contract  required,  yet  the  plaintiff  should  be  allowed  what 
it  was  reasonably  worth.  And  there  was  a  refusal  to  insti-uet 
for  the  defendant,  that  unless  the  plaintiff  had  performed  his 
part  of  the  contract,  in  manner,  form  and  quality  as  specified 
in  the  agreement,  he  could  not  recover. 

There  was  a  judgment  at  special  term  for  plaintiff,  which  was 
reversed  at  general  term,  and  the  cause  was  appealed  to  this 
court. 

In  Yeats  v.  Ballantine  (56  Mo.  530)  all  the  cases  in  this  court 
bearing  on  the  question  here  involved,  were  cited  and  com- 
mented on.  The  established  rule  extracted  and  deduced  from  all 
the  cases  is,  that  where  a  party  fails  to  perform  his  work  ac- 
cording to  the  stipulations  of  his  agreement,  he  cannot  recover 
on  the  special  contract ;  but  if  the  services  rendered  by  him  or 
the  materials  furnished  are  valuable  to  the  other  party,  and  are 
accepted  by  such  party,  then  he  woula  be  liable  to  pay  the  ac- 
tual value  of  the  work  performed,  or  the  materials  furnished, 
not  exceeding-  the  contract  price,  after  deducting  for  any  dam- 


Sec.  2."1  One  Form  of  Action.  45 

ages  which  had  resulted  from  a  breach  of  the  agreement.  There 
may  be  a  recovery  upon  a  quantum  meruit,  although  the  con- 
tract has  not  been  complied  with,  but  in  such  a  case  the  petition 
must  be  grounded  on  a  reasonable  value,  and  it  must  not  be  de- 
clared on  the  contract.  If  the  action  is  brought  upon  the  agree- 
ment, a  performance  of  its  terms  must  be  shown  before  a  re- 
covery can  be  sustained.  The  correctness  of  the  ruling  of  the 
court  at  general  tenn  depends  upon  the  character  of  the  petition. 
Now  the  petition  says  that  the  work  and  labor  were  done,  and 
the  materials  were  furnished  under  the  terms  and  conditions  of 
a  contract,  which  is  shown  to  the  court,  and  it  is  averred  that 
the  plaintiff  kept  and  performed  all  the  terms  and  conditions 
of  the  contract  which  were  to  be  kept  and  performed  by  him, 
and  judgment  is  asked  for  the  work  done  and  materials  fur- 
nished at  the  contract  price.  This  evidently  amounts  to  a  peti- 
tion on  the  contract,  and  it  devolved  on  the  plaintiff,  as  a  pre- 
requisite to  a  judgment  in  his  favor,  to  show  a  performance 
on  his  part  of  its  stipulations. 

The  general  term,  therefore,  did  not  err  in  its  judgment,  and 
if  the  plaintiff  cannot  show  a  compliance  on  his  part,  he  should 
amend  his  petition,  in  order  that  he  may  proceed  on  a  quantum 
meruit. 

The  judgment  must  be  affimied.  The  other  judges  concur, 
except  Judge  Vories,  who  is  absent. 


MILLER  v.  HALLOCK. 

Supreme  Court  of  Colorado,  1886.    9  Col.  551. 

This  was  an  action  instituted  by  the  plaintiff  in  error  to  re- 
cover the  alleged  contract  price  of  a  quantity  of  wood  delivered 
by  said  plaintiff  to  the  defendant  in  error.  The  complaint  states 
that  the  wood  was  delivered  on  a  contract  entered  into  between 
the  parties.  It  alleges  that  "during  the  montlis  of  September 
and  October,  1882,  the  said  plaintiff  sold  and  delivered  to  the 
said  defendant  one  hundred  and  ninety-five  and  three-fourths 
cords  of  wood,  in  consideration  for  which  the  said  defendant 
then  agreed  and  promised  to  pay  plaintiff  the  sum  of  $496.23, 
which  said  defendant  has  wholly  failed  and  neglected  to  do,  and 


46  Actions.  [Chap.  I. 

said  sum  of  $496.23  remains  due  and  unpaid,  for  which  plain- 
tiff prays  judgment  and  for  costs  of  suit."  The  defendant's 
answer  contains  a  specific  denial  of  each  allegation  in  the  com- 
plaint. The  only  witness  sworn  was  the  plaintiff,  who  testified 
in  his  o\m  behalf,  against  the  objections  of  the  defendant,  that 
a  man  by  name  of  Sargent  came  to  his  residence  in  Jefferson 
County,  representing  himself  to  be  defendant's  agent,  and  pur- 
chased for  defendant  two  hundred  and  fifty  cords  of  wood, 
agreeing  to  pay  $2.50  per  cord  for  —  cords,  and  $2.65  per  cord 
for  the  balance.  Sargent  directed  the  wood  to  be  shipped  to 
the  defendant,  and  agreed  that  defendant  should  pay  the  freight. 
Plaintiff,  believing  the  stranger  to  be  the  agent  of  Mr.  Hallock, 
undertook  the  fulfillment  of  the  contract  and  shipped  wood  to 
Mr.  Hallock  by  railway  for  three  weeks,  and  then  came  to  the 
city  to  see  about  the  matter.  When  he  met  the  defendant  the 
latter  told  him  that  he  had  purchased  the  wood  from  Sargent 
and  had  overpaid  him  for  the  quantity  received,  and  that  plain- 
tiff had  better  look  to  Sargent,  as  he  did  not  propose  to  pay 
twice  for  it.  Defendant  had  used  part  of  the  wood  received, 
and  the  balance  was  in  defendant's  yard.  Defendant's  counsel 
objected  to  any  testim.ony  of  the  alleged  contract  until  the 
agency  of  Sargent  should  be  first  shown.  The  trial  was  to  the 
court,  who  stated  that  the  testimony  would  be  received,  but  dis- 
regarded unless  the  agency  was  shown.  The  plaintiff  having  no 
proof  of  the  alleged  agency,  the  court,  at  the  conclusion  of  the 
testimony,  sustained  the  defendant's  motion  for  a  nonsuit. 

Beck,  C.  J.  It  is  conceded  by  the  parties  to  this  cause  that 
the  man  Sargent,  who  procured  the  shipment  of  the  wood  from 
the  plaintiff.  Miller,  to  the  defendant,  Hallock,  was  a  swindler, 
and  that  both  plaintiff  and  defendant  acted  in  food  faith. 
Plaintiff's  counsel  contends  that  the  plaintiff  is  entitled  to  com- 
pensation from  Hallock  for  his  wood,  because  it  was  neither 
sold  nor  delivered  to  Sargent,  but  shipped  to,  received  by,  and 
converted  to  the  use  of  the  said  defendant.  In  support  of  this 
theory,  counsel  cite  the  following  cases,  which  are  clearly  anal- 
ogous to  this  case,  so  far  as  the  facts  are  concerned,  and  which 
seem  to  sustain  the  rule  of  liability  contended  for.  Hamet  v. 
Letcher,  37  Ohio  St.  356;  Barker  v.  Dinsmore,  72  Pa.  St.  427; 
Klein  v.  Seibold,  89  lU.  540;  Barnard  v.  CampbeU,  55  N.  Y. 
457 ;  Moody  v.  Blake,  117  Mass.  23. 

The  theory  of  the  defense,  however,  is  unanswerable  so  far  as 


Sec.  2.]  One  Form  of  Action.  47 

the  present  action  is  concerned.  It  is  that  the  complaint  counts 
upon  a  contract  for  the  sale  of  the  wood,  alleged  to  have  been 
entered  in  between  the  plaintiff  and  the  defendant,  whereas 
the  proof  wholly  failed  to  sustain  the  allegation.  The  cause  and 
character  of  the  eases  above  cited  were  wholly  different  from 
the  action  instituted  in  this  case.  The  former  were  actions  to 
recover  back  the  specific  property  which  had  been  fraudulently 
obtained  from  the  owners,  or,  where  the  property  itself  could 
not  be  recovered,  to  recover  the  value  thereof  from  the  pei^ons 
who  had  converted  it  to  their  own  uses.  Here  the  action 
brought  is  upon  an  alleged  contract  entered  into  by  the  parties 
specifying  the  quantity  of  wood  to  be  delivered  by  the  plaintiff, 
and  the  price  to  be  paid  therefor  by  the  defendant.  No  such 
contract  having  been  made,  of  course  it  could  not  be  proved, 
and  the  court  was  compelled  to  grant  a  non-suit.  There  was  a 
fatal  variance  between  the  allegations  of  the  complaint  and  the 
proofs.  In  such  a  case  it  is  not  enough  that  the  evidence  of  the 
plaintiff  show  a  case  that  calls  for  some  relief.  To  entitle  him 
to  judgment  he  must  show  himself  entitled  to  the  relief  called 
for  by  the  facts  stated  in  his  complaint.  As  stated  by  the  su- 
preme court  of  California,  in  Mondran  v.  Goux,  51  Cal.  151  : 
"The  rule  is  well  settled  that  the  plaintiff  must  recover,  if  at 
all,  upon  the  cause  of  action  set  out  in  his  complaint  and  not 
upon  some  other  which  may  be  developed  by  the  proofs. ' ' 

A  cause  of  action  is  a  wrong  committed  or  threatened.  It 
may  consist  of  the  wrongful  conversion  of  property,  or  of  the 
non-performance  of  an  agreement.  In  one  case  the  cause  of 
action  would  sound  in  tort,  the  other  in  contract ;  and,  while  the 
relief  sought  might  relate  to  the  same  subject-matter,  yet  proof 
of  facts  sufficient  to  sustain  the  action  for  the  tort,  would  he, 
insufficient  to  sustain  the  action  for  the  non-performance  of  the 
agreement,  for  the  reason  that  the  probata  would  not  correspond 
with  the  allegata.  The  complaint  would  state  one  cause  of  ac- 
tion, every  material  averment  of  which  might  be  controverted 
and  put  in  issue  by  the  answer  of  the  defendant,  while  the  facts 
proved  would  be  foreign  to  the  issues  joined.  That  is  just  the 
case  here  presented.  The  complaint  states  a  cause  of  action 
arising  ex  contractu,  and  each  material  averment  thereof  has 
been  controverted  and  put  in  issue  by  the  answer  of  the  defend- 
ant, in  the  exercise  of  his  legal  rights.  The  proofs  introduced 
and  offered  in  evidence  tended  to  establish  a  cause  of  action 


48  Actions.  [Chap.  I. 

arising  ex  delicto.  "A  party  can  have  no  relief  beyond  what 
the  averments  of  his  pleadings  entitle  him  to. ' '  The  allegations 
of  the  complaint,  the  evidence,  and  the  finding  should  corre- 
spond in  legal  intent.  Tucker  v.  Parks,  7  Colo.  62,  (1  Pac.  427)  ; 
Gregory  v.  Haworth,  25  Cal.  656. 

Judgment  affirmed. 


WALKER  V.  DUNCAN. 

Supreme  Court  of  Wisconsin,  1887.    68  Wis.  624. 

The  plaintiff  in  his  complaint  alleged,  in  effect,  that  the  de- 
fendant was  justly  indebted  to  him  in  the  sum  of  $3,375  for 
250,000  feet  of  saw-logs  theretofore  sold  and  delivered  to  the 
defendant  by  the  plaintiff,  and  at  his  special  instance  and  re- 
quest. The  answer  was  a  general  denial.  At  the  close  of  the 
trial  the  jury  returned  a  verdict  in  favor  of  the  plaintiff  for 
$600  damages.  From  the  judgment  thereon  the  defendant 
appeals. 

Cassoday,  J.  The  defendant  owned  a  saw-mill  on  Silver 
Creek,  with  a  mill-pond  which  he  used  for  storing  saw-logs. 
Three-fourths  of  a  mile  above  was  another  saw-mill,  owned  b}^ 
one  Palmer,  with  a  mill-pond  similarly  used.  In  the  winter  of 
1880-81,  the  plaintiff  got  into  Palmer's  mill-pond  and  there 
stored  a  large  quantity  of  saw-logs  belonging  to  himself.  The 
evidence  on  the  part  of  the  plaintiff  tended  to  prove  that  in  a 
time  of  high-water,  in  September,  1881,  a  portion  of  the  plain- 
tiff's saw-logs  floated  out  of  Palmer's  pond  into  the  defendant's 
pond,  and  were  sawed  by  the  defendant  and  converted  to  his 
own  use  without  the  consent  of  the  plaintiff.  The  principal 
error  assigned  is  that  the  cause  of  action  thus  proved  was  not 
the  one  alleged  in  the  complaint,  and  that  the  variance  was  fatal. 
The  cause  of  action  alleged  in  the  complaint  is  upon  contract. 
The  cause  of  action  proved  is  in  tort.  But  this  court  has  re- 
peatedly held  that,  when  money  or  property  has  been  tortiously 
converted,  the  owoier  may  waive  the  tort,  and  sue  and  recover 
upon  contract.  Grannis  v.  Hooker,  29  Wis.  65 ;  Norden  v.  Jones, 
33  Wis.  600;  Western  Assurance  Co.  v.   Towle,  65  Wis.  254. 


Sec.  2,]  One  Form  op  Action.  49 

That  is  what  was  done  here,  and  we  must  therefore  regard  the 
variance  as  immaterial.*    *    *    * 

Judgment  affirmed. 


GOULET  V.  ASSELER. 

Court  of  Appeals  of  New  Yovh,  1860.    22  N.  Y.  225. 

Appeal  from  the  superior  court  of  the  city  of  New  York.  Ac- 
tion for  taking,  selling  and  converting  to  the  defendant's  use  a 
quantity  of  wines,  liquors,  cigars  and  bar  furniture,  the  stock 
and  utensils  of  a  restaurant.  The  plaintiff  made  title  under  a 
chattel  mortgage  executed  to  him  by  M.  Caussidiere  and  E.  Bon- 
nier; and  defendants  justified  under  a  judgment  and  execution 
against  the  mortgagors,  in  which  judgment  they  were  the  plain- 
tiffs, the  execution  being  levied  on  the  property  by  their  direc- 
tion. The  mortgage  was  dated  March  19,  1855,  and  purported 
to  be  for  the  security  of  $1,200,  payable  in  one  year  from  that 
date.  It  contained  the  following  clause:  "And  until  default 
be  made  in  the  payment  of  the  said  sum  of  money,  Ave  (the 
mortgagors),  are  to  remain  and  continue  in  the  quiet  and 
peaceable  possession  of  said  goods  and  chattels,  and  in  the  full 
and  free  enjoyment  of  the  same."  The  principal  part  of  the 
property,  in  value,  was  wines,  liquors  and  cigars.  The  defend- 
ants were  prosecuting  their  actions  when  the  mortgage  was  ex- 
ecuted, and  obtained  judgment  shortly  afterwards.  The  officer 
sold  the  goods  on  the  execution  on  the  27th  April,  1855.  The 
sale  was  in  different  parcels  and  the  goods  were  delivered  by  the 
officer  to  the  respective  purchasers,  and  the  proceeds  were  paid 
to  the  defendants.  No  mention  was  made  of  the  mortgage  at 
the  sale,  though  the  defendants  had  been  informed  of  it  after 
the  levy  and  before  the  sale  took  place.  It  did  not  appear  that 
the  defendants  purchased  any  of  the  goods  at  the  sale.  The  ac- 
tion was  commenced  after  the  debt  mentioned  in  the  mortgage 
became  payable ;  and  the  plaintiff  had,  after  that  time  and  be- 
fore the  bringing  of  this  suit,  demanded  the  goods  of  the  de- 

4  Accord:     Ga,lvin  v.  Mining  Co.,      der  common  law  system  of  plead- 
14  Mont.   508    (1894);   Toledo,  etc.      ing). 
Ey.  Co.  V.  Chew,  67  111.  378    (un- 


50  Actions.  [Chap.  I 

fendants.  The  character  of  the  complaint  and  of  the  evidence 
sufficiently  appears  from  the  following  opinion. 

The  defendants,  on  the  trial,  insisted  that  the  goods  were  sub- 
ject to  levy  on  execution  against  the  mortgagors,  and  that  the 
action  could  not  be  sustained.  The  jury  were  instructed  to  as- 
sess the  value  of  the  goods  and  to  give  their  verdict  for  the  plain- 
tiff for  that  value,  subject  to  the  opinion  of  the  court,  with 
power  to  dismiss  the  complaint.  The  value  was  fixed  by  the 
jury  at  $850,  and  the  court  at  general  term  gave  judgment  for 
the  plaintiff  for  that  amount.  The  defendants  appealed.  The 
case  was  submitted  without  oral  arguments,  on  printed  briefs. 

Selden,  J.  If  the  plaintiff  has  any  legal  remedy  for  the  in- 
jury of  which  he  complains,  it  is  clear  that  the  remedy  has  not 
been  properly  pursued  in  the  present  case,  and  that  the  judg- 
ment therein  cannot  be  sustained  consistently  with  the  well 
established  principles  of  the  common  law,  and  the  repeated  de- 
cisions of  this  court.  The  difficulty  in  the  case,  and  the  error 
of  the  court  below,  will  be  most  readily  seen  and  appreciated 
by  reference  to  some  of  the  distinctions  between  those  forms  of 
action  which  the  code  has  abolished.  It  can  hardly  be  claimed 
that,  prior  to  the  code,  an  action  of  trespass  or  trover  could  have 
been  maintained,  either  against  the  officer  or  the  plaintiff  in  the 
execution,  under  the  circumstances  here  disclosed.  The  case 
would  have  fallen  directly  within  the  principles  of  the  case  of 
Gordon  v.  Harper  (7  Term.  R.  9),  and  the  subsequent  cases  of 
that  class  which  have  never  been  departed  from,  either  in  Eng- 
land or  in  this  country.  If  any  action  would  have  lain  before 
the  code,  it  could  only  have  been  an  action  founded  upon  the 
special  circumstances  of  the  case,  setting  forth  the  injury  to  the 
contingent  interest  of  the  plaintiff  in  the  property,  and  claim- 
ing damages  for  such  injury. 

While,  however,  in  such  an  action,  the  plaintiff  would  have 
avoided  the  effect  of  the  technical  rule  that,  in  order  to  recover 
in  trespass  or  trover,  he  must  show  that  he  had  either  the  actual 
possession  or  the  right  of  the  possession  at  the  time  of  the  al- 
leged taking  or  conversion,  he  also,  supposing  that  the  action 
could  have  been  maintained,  would  have  imposed  upon  himself 
the  necessity  of  proving,  specifically,  the  damages  which  he  had 
sustained.  In  trespass  and  trover,  before  the  code,  the  plaintiff 
recovered,  if  at  all,  upon  the  ground  that  he  was  the  owner  of 
the  piroperty  in  controversy.     The  measure  of  damages,  there- 


Sec.  2.]  One  Form  of  Action.  51 

fore,  in  all  such  cases,  was  the  value  of  the  property  taken  or 
converted.  Although  it  appeared  that  the  plaintiff  held  the  title 
as  mere  security  for  a  debt,  and  that  his  debtor  was  abundantly 
able  to  pay,  so  that  his  actual  loss  was  nothing,  his  recovery,  in 
cases  where  he  recovered  at  all,  was  nevertheless  for  the  full 
value  of  the  property,  provided  that  did  not  exceed  the  amount 
of  his  lien.  In  a  special  action  on  the  case,  on  the  contrary,  the 
plaintiff  could,  under  no  circumstances,  recover  more  than  the 
damages  shown  to  have  been  actually  sustained.  He  must  prove 
to  what  extent  his  security  was  impaired,  by  showing  whether 
the  debtor  was  or  was  not  responsible,  and  whether  or  not  it 
was  still  in  his  power  to  follow  and  enforce  his  lien  against  the 
property. 

Although  the  code  has  abolished  all  distinctions  between  the 
mere  forms  of  action,  and  every  action  is  now  in  form  a  special 
action  on  the  case,  yet  actions  vary  in  their  nature,  and  there 
are  intrinsic  differences  between  them  Avhich  no  law  can  abolish. 
It  is  impossible  to  make  an  action  for  a  direct  aggression  upon 
the  plaintiff's  rights  by  taking  and  disposing  of  his  property, 
the  same  thing,  in  substance  or  in  principle,  as  an  action  to  re- 
cover for  the  consequential  injury  resulting  from  an  improper 
interference  \^'ith  the  property  of  another,  in  which  he  has  a 
contingent  or  prospective  interest.  The  mere  formal  differences 
between  such  actions  are  abolished.  The  substantial  differences 
remain  as  before.  The  same  proof,  therefore,  is  required  in  each 
of  these  two  kinds  of  actions  as  before  the  code,  and  the  same 
rule  of  damages  applies.  Hence,  in  an  action  in  which  the  plain- 
tiff establishes  a  right  to  recover,  upon  the  ground  that  the  de- 
fendant has  wrongfully  converted  property  to  the  possession  of 
wliich  the  plaintiff  was  entitled  at  the  time  of  the  conversion, 
the  proper  measure  of  damages  still  is,  the  value  of  the  prop- 
erty; while  in  an  action  in  which  the  plaintiff  recovers,  if  at  all, 
upon  the  ground  that  the  defendant  has  so  conducted  himself 
in  the  exercise  of  a  legal  right  in  respect  to  another's  property, 
as  unnecessarily  and  improperly  to  reduce  the  value  of  a  lien, 
which  the  plaintiff  could  only  enforce  at  some  subsequent  day, 
the  damages  must,  of  course,  depend  upon  the  extent  to  which 
that  lien  has  been  impaired. 

If  we  apply  these  principles  to  the  present  case,  the  error  in 
the  judgment  under  review  becomes  apparent.  The  complaint 
is,  in  substance,  the  same  as  a  declaration  in  trover,  under  the 


52  Actions.  [Chap.  I. 

former  system  of  pleading.  It  is  true  that  it  sets  out  the  mort- 
gage as  well  as  the  judgment  and  execution  obtained  by  the 
defendants,  and  the  proceedings  under  them;  but  the  gist  of 
each  of  the  counts  is,  that  the  defendants  have  taken  the  prop- 
erty of  the  plaintiff,  and  converted  and  disposed  thereof  to  their 
own  use.  The  form  of  the  complaint  in  this  respect  would  be 
of  no  importance,  provided  the  proof  had  been  such  as  to  en- 
title the  plaintiff  to  the  judgment  rendered.  This  court  will 
not  reverse  a  judgment  simply  because  the  case  made  by  the  evi- 
dence varies  from  that  set  forth  in  the  complaint,  where,  as  in 
this  case,  no  objection  was  taken  on  that  account  at  the  trial. 
If  it  appears  that  the  proof  was  sufficient  to  entitle  the  success- 
ful party  to  the  judgment  actually  given,  such  judgment  will 
be  sustained.  Here,  however,  the  proof  could,  at  most,  only  au- 
thorize the  plaintiff  to  recover  the  consequential  damages  result- 
ing to  the  contingent  interest  under  the  mortgage;  while  the 
damages  were  assessed  and  the  judgment  rendered  upon  the 
assumption  that  he  was  the  owner  of  the  property  and  entitled 
to  the  immediate  possession.    *    *    * 

Judgment  reversed. 


ANDERSON  v.  CASE. 
Supreme  Court  of  Wisconsin,  1871.    28  ^Yis.  505. 

Lyon,  J.  The  complaint  charges  that  the  defendants  unlaw- 
fully seized  and  converted  to  their  own  use  certain  personal 
property  therein  described,  in  which  the  plaintiffs  have  an  in- 
terest by  virtue  of  a  chattel  mortgage  thereon,  executed  by  one 
J.  D.  Downer,  to  secure  his  indebtedness  to  them,  to  the  amount 
of  $155.75.  The  answer  of  the  defendants  admits  the  taking  of 
the  property,  and  denies  all  the  other  allegations  of  the  com- 
plaint.   *    *    * 

The  testimony  tends  to  show  that  the  defendants  shipped  and 
sold  the  hops  with  the  consent  and  by  the  request  of  the  plain- 
tiffs. 

Before  the  public  sale  of  the  balance  of  the  property,  the 
parties  entered  into  a  wTitten  agreement  relative  to  the  proceeds 
of  the  sale  thereof,  which  the  circuit  court  held  operated  as  a 


Sec.  2.]  One  Form  op  Action.  53 

waiver  of  the  alleged  tortious  taking  of  the  property  affected 
by  it.  This  ruling  of  the  circuit  court,  being  in  favor  of  the 
respondents,  is  not  before  us  for  review  on  this  appeal. 

The  circuit  judge  instructed  the  jury,  in  substance,  that  if, 
after  the  defendants  seized  the  hops,  the  plaintiff  (-onsented  that 
they  might  ship  and  sell  them,  such  a  consent  was  a  waiver  of 
the  wrongful  taking,  and  the  only  remedy  of  the  plaintiffs  in 
such  case  would  be  an  action  for  money  had  and  received  to  re- 
cover the  proceeds  of  the  sale  thereof.  But  this  instruction  was 
given  with  the  following  qualification:  ''The  force  and  effect 
of  such  consent,  if  any  was  given,  would  depend  very  much 
upon  the  plaintiffs'  understanding  of  the  defendants'  claim.  If 
they  understood  that  the  defendants  considered  their  claim  to 
be  subject  and  secondary  to  the  plaintiffs'  claim,  and  that  the 
proceeds,  by  whomsoever  collected,  would  be  divided  according 
to  such  respective  rights,  a  consent  under  such  circumstances 
ought  not  to  be  a  waiver  of  the  wrongful  taking. ' ' 

The  plaintiffs  had  a  verdict  and  judgment  for  the  amount  of 
their  mortgaged  property ;  and  the  defendants  appeal  from  such 
judgment. 

The  action  is  for  the  unlawful  conversion  of  the  property  de- 
scribed in  the  complaint.  Before  the  adoption  of  the  code,  it 
would  have  been  an  action  of  trover.  If  the  plaintiffs  consented 
that  the  defendants  should  ship  and  sell  the  hops,  then  clearly 
there  was  no  conversion,  of  the  hops  by  the  defendants,  and  no 
action  of  trover  can  be  maintained  therefor.  The  circuit  judge 
so  instructed  the  jury,  and  instructed  them  correctly.  But  the 
qualification  to  that  instruction  above  stated  we  think  is  errone- 
ous. We  are  unable  to  see  how  any  misunderstanding  between 
the  parties  as  to  their  respective  rights  in  the  proceeds  of  the 
sale,  or  any  misapprehension  by  the  plaintiffs  of  the  views  of 
the  defendants  on  the  subject,  not  caused  by  the  fraud  of  de- 
fendants, can  effect  such  consent  or  weaken  the  force  of  it.  If 
the  plaintiffs  gave  such  consent,  and  it  was  important  to  them 
to  know,  before  doing  so,  what  the  views  of  the  defendants  were, 
as  to  which  mortgage  had  priority,  and  as  to  which  party  was 
entitled  to  be  first  paid  out  of  the  proceeds  of  the  sale,  they 
should  have  ascertained  before  consenting  to  the  sale,  what  those 
views  were.  And  it  cannot  weaken  or  change  the  legal  effect 
of  such  consent  (the  defendants  being  guilty  of  no  fraud),  if 
such  consent  was  given  without  knowledge  of  the  views  of  the 


54  Actions.  [Chap.  I. 

defendants  in  that  behalf,  or  under  a  misapprehension  of  those 
views.  In  either  case  it  must  be  held  that  the  consent  of  the 
plaintiffs  to  the  sale,  if  given,  operated  as  a  waiver  of  the  al- 
leged tort;  and  in  such  case  there  could  not  have  been  a  WTong- 
ful  conversion  of  the  hops. 

It  is  very  evident  that  this  objectionable  instruction  may  have 
misled  the  jury.  The  jury  may  have  found  that  the  plaintiffs 
consented  to  the  sale,  and  yet,  under  this  instruction,  if  they 
also  found  that  the  plaintiffs  gave  such  consent  supposing  that 
the  defendants  conceded  the  priority  of  their  mortgage,  the  ver- 
dict must  necessarily^  have  been  for  the  plaintiffs. 

The  plaintiffs  contend,  however,  that  although  they  have 
failed  to  establish  their  right  to  recover  in  this  form  of  action 
for  the  conversion  of  the  property,  they  have  proved  their  right 
to  recover  the  proceeds  of  the  sale  thereof  in  an  action  for 
money  had  and  received,  and  that  therefore  the  verdict  and  the 
judgment  should  not  be  disturbed. 

The  rule  on  this  subject  is,  that  where  the  case  has  been  tried 
on  the  merits  and  substantial  justice  done  between  the  parties, 
the  verdict  will  not  be  set  aside  upon  a  question  of  form  only, 
or  upon  some  merely  technical  objection  to  the  form  of  the 
action.  3  Graham  and  Waterman  on  New  Trials,  chap.  XIV, 
sec.  IX,  and  cases  cited. 

We  think  that  an  application  of  this  rule  to  the  present  case 
will  not  save  this  verdict  and  judgment.  The  distinction  be- 
tween an  action  for  the  wrongful  conversion  of  property,  and 
an  action  for  money  had  and  received,  is  not  merely  technical 
or  formal,  but  is  a  substantial  one.  The  former  is  an  action  ex 
delicto,  the  latter  ex  contractu.  In  the  one  execution  goes 
against  the  body,  in  the  other,  against  the  property  only,  of  the 
defendant.  The  defendants  in  this  action  are  liable  to  be  im- 
prisoned by  virtue  of  an  execution  issued  upon  the  judgment 
against  them,  while  they  would  not  be  so  liable  were  this  an 
action  for  money  had  and  received. 

It  is  believed  that  no  case  can  be  found  which  attempts  to 
ignore  this  vital  distinction  between  those  actions,  or  to  deal 
with  it  as  merely  a  formal  or  a  technical  matter.  Certainly  the 
learned  counsel  for  the  plaintiffs  has  not  referred  us  to  such  a 
case. 

We  find  no  other  error  in  the  instructions  which  were  given  to 


Sec.  2.]  One  Form  of  Action.  55 

the  jury  by  the  circuit  judge.     But  for  the  error  aforesaid,  we 
think  that  there  should  be  a  new  trial. 

Judgment  reversed. 


BARNES  V.  QUIGLEY. 
Court  of  Appeals  of  New  York,  1874.    59  N.  Y.  265. 

Appeal  from  judgment  of  the  General  Term  of  the  Supreme 
Court  in  the  second  judicial  department,  affirming  a  judgment 
in  favor  of  plaintiff,  entered  upon  a  verdict,  and  affirming  an 
order  denying  a  motion  for  a  new  trial. 

The  complaint  in  this  action,  in  substance,  alleged  that  on  the 
3d  day  of  April,  1871,  plaintiff  was  the  owner  of  a  promissory 
note  made  by  defendant,  payable  to  the  order  of  Britton  &  Co., 
for  $2,165.86 ;  which  was  indorsed  by  the  payees  and  transferred 
to  plaintiff  before  maturity;  that  prior  to  its  maturity  the 
payees  failed  and  made  an  assignment;  that  on  or  about  the 
day  mentioned,  defendant,  for  the  purpose  of  deceiving  plain- 
tiff and  inducing  him  to  surrender  up  the  note  for  a  less  sum 
than  was  due  thereon,  falsely  and  fraudulently  represented  that 
the  note  was  made  by  him  solely  for  the  accommodation  of  the 
payees,  he  receiving  no  consideration  whatever  therefor,  and 
that  all  moneys  paid  by  him  upon  the  note  would  be  an  entire 
loss,  whereas  the  note  was  in  fact  for  merchandise  sold  by  the 
payees  to  defendant,  and  that  he  received  full  value  for  the 
note.  That  plaintiff  relying  upon  said  representations,  and 
being  ignorant  of  the  facts,  was  induced  thereby  and  did  accept 
$582.70  less  than  the  amount  due,  and  surrendered  up  the  note. 

That  by  reason  of  the  premises  said  plaintiff  has  been  de- 
ceived and  defrauded  by  said  defendant  out  of  said  sum  of 
$582.70,  and  has  sustained  damage  to  that  amount. 

Defendant's  answer  admitted  the  allegations  of  the  complaint 
as  to  the  making,  indorsement  and  transfer  of  the  note,  the 
failure  of  the  payees,  and  that  he  paid  the  sum  of  $1,600  in 
full  settlement  of  the  note,  which  was  surrendered  up  to  him. 
He  denied  all  the  other  allegations  of  the  complaint.  On  the 
trial  plaintiff  moved  for  judgment  on  the  pleadings,  which  mo- 
tion was  granted,  and  directed  a  verdict  for  the  balance  unpaid 
on  the  note,  to  which  defendant's  counsel  duly  excepted. 


56  Actions.  [Chap.  I. 

Allen,  J.  The  complaint  is  for  fraud,  and  not  upon  con- 
tract. Whether  the  facts  stated  constitute  a  cause  of  action  is 
not  material.  The  whole  frame-work  is  in  fraud,  and  the  cause 
of  action,  as  set  forth,  is  based  upon  the  false  and  fraudulent 
representations  of  the  defendant,  by  which  the  plaintiff  was  in- 
duced to  surrender  and  give  up  to  the  defendant  his  promissory- 
note,  held  and  owned  by  the  plaintiff,  for  an  insufficient  con- 
sideration, an  amount  considerably  less  than  its  face,  by  reason 
whereof,  as  alleged,  the  "plaintiff"  has  been  deceived  and  de- 
frauded out  of  said  sum  of  $582.70,  and  has  sustained  damage 
to  that  amount." 

The  theory  of  the  plaintiff  at  the  commencement  of  the  action, 
and  the  foundation  of  his  claim  as  formally  made  in  his  com- 
plaint, was,  that  a  surrender  of  the  note  upon  the  receipt  of  an 
agreed  sum,  less  than  the  amount  actually  due  in  satisfaction 
for  the  full  sum,  was  equivalent  to  a  release  under  seal,  and 
effectually  discharged  the  debt.  In  that  view  he  could  only 
recover  by  impeaching  the  release  and  discharge,  for  fraud,  and 
he  framed  his  complaint  to  meet  the  case  in  that  form.  His 
whole  cause  of  action  rested  upon  the  alleged  fraud,  and  it  was 
an  entire  change  of  that  cause,  and  a  surprise  upon  the  defend- 
ant, when  this  view  was  ignored  by  the  counsel  and  the  court 
at  the  trial,  and  a  verdict  ordered  upon  a  denial  in  the  answer 
of  the  only  material  allegations  of  the  complaint.  We  are  not 
to  speculate  upon  the  question  whether  the  surrender  of  the 
note  did  discharge  the  obligation.  The  plaintiff  assumed  that  it 
did,  and  brought  his  action  to  recover  for  the  fraud  by  which 
the  discharge  was  procured.  It  was  error  in  the  court  to  change 
the  form  of  the  action,  by  striking  out  or  treating  as  surplusage 
the  principal  allegations — those  which  characterize  and  give 
form  to  the  action — because,  perchance,  there  may  be  facts 
stated  by  way  of  inducement  spelled  out,  w^hich  would,  when 
put  in  proper  form,  have  sustained  an  action  of  assumpsit. 

The  defendant  was  called  upon  to  answer  the  allegations  of 
fraud,^  and  not  to  resist  a  claim  to  recover  in  assumpsit.     The 

6  The  same  rule  has  been  devel-  Ferraby  v.  Hobson,  2  Phil,  Ch.  255 
oped  in  equity,  that  a  bill,  clearly       (1847). 

framed     on    the     basis     of    fraud.  For    comments    on    this    class   of 

would    not    be    sustained    on    some       cases,  see  "The  Theory  of  a  Plead- 
other  ground  incidentally  disclosed,       ing",  by  Prof.  Whittier,  8  Colum- 
bia Law  Eeview,  523. 


Sec.  2.]  One  Form  of  Action.  57 

two  forms  of  actions  might  require  very  different  defenses.  This 
is  not  the  case  of  an  obligation  or  contract  fraudulently  in- 
curred, in  an  action  upon  which  the  fraudulent  acts  of  the 
obligor  or  promissor  are  averred,  which,  as  they  do  not  enter 
into  the  contract,  and  are  not  essential  to  the  cause  of  action, 
may  and  should  be  rejected  as  surplusage,  as  in  Graves  v.  Waite 
(59  N.  Y.  156),  recently  decided  by  this  court.  The  plaintiff 
was  not,  under  the  complaint,  entitled  to  a  verdict  and  judg- 
ment, as  in  an  action  upon  the  note.  The  defendant,  in  pre- 
paring his  answer  and  putting  in  his  defense,  was  as  uncon- 
scious of  any  necessity  of  stating  and  setting  up  any  defense 
he  might  have  to  the  note,  as  the  framer  of  the  complaint  was 
innocent  of  any  intent  to  make  a  case  for  a  recovery  upon  the 
note,  as  a  valid  and  subsisting  obligation.  While  the  Code  is 
liberal  in  disregarding  technical  defects  and  omissions  in  plead- 
ings, and  allowing  amendments,  it  does  not  permit  a  cause  of 
action  to  be  changed,  either  because  the  plaintiff  fails  to  prove 
the  facts  necessary  to  sustain  it,  or  because  he  has  mistaken  his 
remedy,  and  the  force  and  effect  of  the  allegations  of  his  com- 
plaint. (Code,  §  173;  DeGraw  v.  Elmore,  50  N.  Y.  1 ;  Ross  v. 
Mather,  51  id.  108;  Elwood  v.  Gardner,  45  id.  349.) 

The  judgment  must  be  reversed  and  a  new  trial  granted,  costs 
to  abide  the  event. 


GREENTREE  v.  ROSENSTOCK. 
Court  of  Appeals  of  New  York,  1875.    61  N.  7.  583. 

Appeal  from  the  judgment  of  the  General  Term  of  the  Su- 
perior Court  of  the  City  of  New  York,  affirming  a  judgment  in 
favor  of  plaintiff  entered  upon  the  report  of  a  referee. 

The  summons  in  the  action  was  for  relief.  The  complaint  set 
forth  that,  in  the  month  of  December,  1858,  one  Nathan  Hofiflin, 
at  San  Francisco,  California,  appointed  the  defendant,  who  then 
resided  in  that  city,  agent  to  sell  for  him  certain  property  in 
California,  then  belonging  to  him,  and  to  collect  certain  claims 
owing  to  him  from  persons  in  the  state,  and  that  the  defendant 
accepted  the  trust  and  agreed  duly  to  account  to  HofHin  for 
the  proceeds  of  the  sales  and  collections  made  by  him  as  such 


58  Actions.  [Chap.  I. 

agent.  It  was  further  alleged  that  the  defendant,  as  such  agent, 
had  received  for  the  said  Nathan  Hoflflin  the  sum  of  $4,153.75, 
in  the  gold  coin  of  the  United  States,  and  had  failed  to  account 
for  the  same  to  Hofflin,  but  had  converted  the  same  to  his  ^wn 
use.  That  the  said  Nathan  Hofiflin,  for  value,  assigned  his  claim 
for  said  funds,  or  the  proceeds  thereof,  to  the  plaintiff ;  and  that, 
though  requested  by  the  plaintiff  since  the  assignment,  the  de- 
fendant refused  to  pay  him  the  gold  coin  or  its  proceeds,  and 
that  by  reason  thereof  he  had  sustained  damage,  etc.^    #    »    # 

DwiGHT,  C.  On  the  appeal  from  the  judgment,  the  defend- 
ant claims  that  the  referee  should  have  dismissed  the  complaint, 
on  the  ground  that,  as  the  summons  is  for  relief,''  and  according 
to  his  view,  the  action  is  in  tort  for  the  conversion  of  gold,  and 
the  claim  is  for  $10,000  damages,  consequent  on  the  tort,  the 
plaintiff  cannot  recover  on  contract  merely  for  a  debt  due. 

I  do  not  think  that  the  present  action  is  framed  in  tort.  The 
allegations  are  all  such  as  would  be  properly  made  if  one  sought 
to  recover  from  his  agent  on  an  accounting.  The  complaint 
alleges  the  employment  of  the  defendant,  his  receipt  of  Hofflin 's 
money,  the  failure  of  the  defendant  to  account  for  the  money 
or  the  proceeds,  or  to  pay  the  same  to  Hofflin,  and  his  refusal 
to  pay  the  money  or  the  proceeds  to  the  plaintiff,  though  re- 
quested to  do  so.  These  allegations  plainly  are  framed  on  the 
view  that  the  defendant  was  bound  to  make  over  not  specific 
money,  but  only  to  give  that  or  its  proceeds,  or  in  other  words, 
simply  to  account,  in  his  character  of  agent.  An  action  to  hold 
him  upon  this  liability  is  an  ordinary  action  upon  contract.  It 
is  true  that,  in  connection  with  these  statements,  it  is  asserted 
that  the  defendant  "converted  the  property  to  his  own  use." 
This  is,  however,  merely  surplusage.  Under  all  the  circum- 
stances, it  is  an  immaterial  allegation.  It  is  a  mere  deduction 
from  the  statement  of  fact,  and  in  the  connection  in  which  it 
is  used,  it  is  not  traversable.  Conaughty  v.  Nichols  (42  N,  Y. 
83)  is  in  point.  The  complaint  in  that  case  was  framed  on  the 
theory  of  an  agency,  and  there  were  sufficient  allegations  to 
show  the  defendant's  duty  to  account.  Then  there  followed  a 
statement  that  the  defendant  refused  to  pay,  and  had  "con- 

6  Parts  of  the  statement  and  the  court  for  the  relief  demanded 
opinion  omitted.  in    the    complaint.      See    Rosa    v. 

7  That    is,    the    summons    stated  Mather,   51   N.   Y.   108. 
that   the   plaintiff  would   apply  to 


Sec.  2.]  One  Form  of  Action.  59 

verted  the  plaintiff's  property  to  his  own  use."  The  court  held 
that  if  the  words  "converted  the  same  to  his  own  use,''  had 
been  omitted  there  would  have  been  a  complete  cause  of  action 
upon  contract.  These  words  were  unnecessaiy  to  be  stated,  and 
superfluous.  Their  insertion,  accordingly,  had  no  effect  upon 
the  cause  of  action,  and  the  plaintiff  was  alloAved  to  recover. 
I  think  that  this  case  was  rightly  decided,  though  it  has  met 
with  some  criticism. 

The  true  theory  of  that  case  is  that  the  words  as  there  used 
were  a  mere  legal  conclusion,  drawn  by  the  pleader  from  the  facts 
which  he  had  averred.  The  pleader  had  stated  facts  from  which 
that  conclusion  did  not  logically  follow.  It  is  not  legally  true 
that  a  commission  merchant  who  has  sold  goods  and  received 
the  price  does,  by  retaining  the  price,  convert  it  to  his  own  use, 
so  as  to  make  him  liable  in  an  action  of  trover.  (Walter  v. 
Bennett,  16  N.  Y.  250.)  Had  it  been  the  correct  exposition  of 
the  law  that  such  retention  is  truly  a  conversion,  and  had  the 
allegations  been  framed  on  such  a  theory,  I  concede  that  the 
plaintiff  could  not,  upon  the  authorities,  recover  upon  proof 
which  showed  the  defendant  to  be  liable  upon  a  contract. 
(Walter  v.  Bennett,  supra.)  That,  however,  is  not  the  case. 
Conaughty  v.  Nichols,  considered  from  this  point  of  view,  is 
perfectly  sound,  and  only  maintains  that  an  action  upon  a  con- 
tract does  not  cease  to  be  such  because  it  contains  an  incorrect 
legal  conclusion  having  the  aspect  of  a  tort.  See  also  Ledwich 
V.  McKim  (53  N.  Y.  307-316),  Avhere  the  principle  in  Conaughty 
V.  Nichols  is  approved. 

This  view  in  no  respect  conflicts  with  Ross  v.  Mather  (51  N. 
Y.  108).  That  w^as  an  entirely  different  case.  The  complaint 
in  that  case  contained  all  the  elements  of  a  complaint  for  fraud. 
The  averments  were  not  conclusions  of  law,  as  in  the  allegations 
of  conversion  in  Conaughty  v.  Nichols,  and  in  the  case  at  bar, 
but  statements  of  specific  facts.  There  was,  among  other  things, 
a  positive  averment  of  a  false  statement,  and  of  knowledge,  on 
the  part  of  the  defendant,  of  its  falsity,  and  of  the  fact  that  the 
purchaser  was  fraudulently  deceived.  These  statements  were 
absolutely  necessary  to  the  action,  considered  as  an  action  of 
tort.  They  were  out  of  place  in  an  action  on  the  contract.  The 
court  held  that  the  plaintiff  could  only  recover  on  the  theory 
of  a  fraud.  A  case  so  different  in  its  facts  is  no  authority  for 
overruling  Conaughty  v.  Nichols.     The  cases  may  well  stand 


60  Actions.  [Chat'.  I, 

together.  The  court,  in  Ross  v.  Mather,  did  not  intend  to  go 
counter  to  that  case  (page  112).  It  also  holds  that  the  fact 
that  the  summons  is  for  relief  is  immaterial.  The  same  remark 
must  be  made  as  to  the  prayer  for  damages.  The  present  case 
is  put  distinctly  on  the  ground  that  no  other  action  would  lie 
against  the  defendant,  except  one  upon  contract.  (Walter  v. 
Bennett  16  N.  Y.  250;  Weymouth  v.  Boyer,  1  Ves.  Jr.  416; 
Harris  v.  Schultz,  40  Barb.  315.)  The  allegations  are  sufficient 
to  sustain  that  view,  and  the  statement  of  a  conversion  is  an 
erroneous  legal  conclusion  from  the  facts  averred,  in  its  nature 
not  traversable,  and  doing  no  possible  harm  to  the  defendant.* 

Judgment  affi7-med. 


FREER  V.  DENTON. 

Court  of  Appeals  of  New  York,  1875.     61  N.  Y.  492. 

The  complaint  in  this  action  alleged  that  the  parties,  on  the 
13th  day  of  May,  1869,  entered  into  a  contract  which  was  set 
forth,  by  which  defendant  agreed  to  sell  and  to  convey  certain 
premises  to  the  plaintiff  at  a  specified  price  per  acre,  which 
plaintiff  agreed  to  pay  as  follows:  Ten  dollars  at  the  time  of 
the  execution  of  the  contract,  $800  July  1st,  1869,  and  the  bal- 
ance "on  or  before  the  1st  day  of  April,  1870."  Defendant 
agreed,  on  receiving  such  payment  at  the  time  and  in  the  man- 
ner mentioned,  to  convey  the  premises  by  warranty  deed  free  of 
incumbrances.  The  complaint  then  set  forth  that  plaintiff  was 
induced  to  enter  into  the  contract  hy  means  of  various  false  and 
fraudulent  representations  on  the  part  of  defendant  as  to  his 
title,  and  that  relying  on  the  same  he  paid  the  said  sum  of 


8  And    so   in   Sparman   v.   Keim,  to   disaffirm.     Semble  contra,  Wal- 

83    N.    Y.    245    (1880),    where    the  ter  v.  Bennett,  16  N.  Y.  250.     See 

complaint  alleged  that  the  plaintiff  also  Supervisors  v.  Decker,  30  Wis. 

was    an   infant    and   had   been   in-  624     (1892),     where     a     complaint 

duced  to  invest  money  in  the   de-  framed  on  the  theory  of  a  conver- 

fendant's    business    on    the    false  sion  of  money  by  a  public  officer 

and      fraudulent      representations  and  insufficient  on  that  basis,  was 

that    large    profits   would   be    real-  not  sustained  as  a  count  for  money 

ized,   and   a  recovery  was  allowed  had   and   received, 
on  the  theory  of  an  infant's  right 


Sec.  2.]  One  Form  op  Action.  61 

The  defendant  was  unable  to,  and  expressly  refused  to,  carry 
out  the  contract,  and  notified  plaintiff  that  he  would  neither 
perform,  nor  pay  back  the  money  received,  and  judgment  was 
demanded  for  the  money  so  paid,  and  also  for  damages. 

The  answer  put  in  issue  all  the  allegations  contained  in  the 
complaint,  except  the  execution  and  delivery  of  the  contract,  and 
alleged  readiness  and  willingness  to  perform,  and  an  offer  of 
performance  on  the  part  of  the  defendant. 

The  plaintiff  proved  that  he  paid  ten  dollars  on  the  execution 
of  the  contract,  and  $800  on  the  15th  day  of  July,  1869 ;  and  he 
gave  evidence  tending  to  show  that,  before  the  22nd  day  of 
March,  1870,  he  was  ready  and  willing  to  perform  the  contract 
on  his  part,  and  pay  the  balance  of  the  purchase-money,  and 
offered  to  do  so,  and  that  he  demanded  a  conveyance;  that  the 
defendant  was  not  able  to  give  title  to  the  Schoonmaker  lot, 
and  refused  to  perform  the  contract  on  his  part,  and  absolutely 
repudiated  the  same ;  that  the  plaintiff  then  demanded  back  the 
money  which  he  had  paid,  and  the  defendant  refused  to  pay  the 
same.  It  appeared  that  this  action  was  commenced  on  the  23d 
day  of  March,  1870.  The  defendant  called  witnesses  to  con- 
trovert the  evidence  on  the  part  of  the  plaintiff,  and  the  judge 
holding  the  Circuit  ruled,  both  upon  a  motion  to  nonsuit  and  in 
his  charge  to  the  jury,  that  the  plaintiff  could  recover  the  money 
paid  by  him  if  he  was  ready  and  offered  to  perform  and  the  de- 
fendant refused  to  perform  and  repudiated  the  contract,  with- 
out the  proof  of  any  fraud;  and  that  the  action  could  be  com- 
menced before  the  1st  day  of  April,  1870. 

To  these  rulings  of  the  court  defendant's  counsel  duly  ex- 
cepted. The  jury  found  for  the  plaintiff,  and  rendered  a  ver- 
dict in  his  favor  for  the  $810,  and  interest. 

Earl,  C. — The  plaintiff  did  not  prove  the  frauds  alleged  in 
the  complaint,  and  no  question  of  fraud  was  submitted  to  the 
jury.  If,  therefore,  this  was,  under  the  complaint,  necessarily 
an  action  of  fraud,  the  plaintiff  should  have  been  defeated. 

Upon  the  facts  stated  in  the  complaint,  the  plaintiff  could  re- 
cover the  money  paid  by  him  upon  either  one  of  two  theories : 
(1)  He  could  avoid  and  repudiate  the  contract  on  the  ground 
of  the  fraud  alleged,  and  recover  back  the  money,  because  it  had 
been  obtained  from  him  by  fraud,  and  the  defendant  had  no 
right  to  retain  it;  or  (2),  he  could  rescind  the  contract,  because 
the  defendant  refused  to  perform  and  repudiated  the  same,  and 


62  Actions.  [Chap.  I. 

thus  held  his  money  without  any  consideration  therefor. 

Upon  either  theory  the  action  is  based  upon  the  promise  to 
pay  back  the  money  implied  by  law  (Byxbie  v.  Wood,  24  N.  Y. 
607),  and  is  one,  therefore,  upon  contract.  An  action  for  money 
had  and  received  lies,  in  all  cases,  where  one  has  had  and  re- 
ceived money  belonging  to  another  without  any  valuable  con- 
sideration given  on  the  receiver's  part,  for  the  law  construes 
this  to  be  money  had  and  received  for  the  use  of  the  owner 
only,  and  implies  that  the  person  so  receiving  promised  and  un- 
dertook to  account  for  it  to  the  true  owner;  and  in  case  a  de- 
fendant be  under  an  obligation,  from  the  ties  of  natural  justice, 
to  refund  money,  the  law  implies  a  debt,  and  gives  this  action 
founded  on  the  equity  of  the  plaintiffs'  case.  (3  Bl.  Com.,  163; 
Cobb  V.  Dows,  10  N.  Y.  335 ;  Moses  v.  Macferlan,  2  Burr.,  1005). 
No  error  was,  therefore,  committed  at  the  Circuit  in  the  holding 
that  the  plaintiff  was  not  bound  to  prove  his  allegations  of  fraud. 

The  facts  stated  in  the  complaint  showed  two  causes  of  action, 
one  to  recover  back  the  money  paid,  because  the  defendant  re- 
fused to  perform  and  repudiated  the  contract,  and  this  was 
made  out  without  proof  of  any  fraud;  and  another  to  recover 
back  the  money  paid,  on  the  ground  that  it  was  obtained  from 
the  plaintiff  by  fraud.  These  two  causes  of  action  could  be 
united  in  the  same  complaint,  but  should  have  been  separately 
stated.  No  objection  was,  however,  made  that  they  were  not 
thus  stated,  and  such  an  objection  could  only  be  made  by  mo- 
tion.    (Bass  V.  Comstock,  38  N.  Y.  21.) 

The  only  other  question  to  be  considered  is,  whether  the  action 
could  properly  be  commenced  before  the  1st  day  of  April,  1870. 
*     *      * 

Judgment  affirmed. 


BAILEY  V.  MOSHER. 

Circuit  Court  of  Appeals,  1894.     63  Fed.  488. 

Caldwell,  Circuit  Judge.  This  action  was  brought  in  the 
district  court  of  Lancaster  county,  Neb.,  by  Thomas  Bailey,  the 
plaintiff  in  error,  against  Charles  W.  Mosher,  Homer  J.  Walsh, 
Kolla  0.  Phillips,  Charles  E.  Yates,  Ellis  P.  Hamer,  Ambrose  P. 


Sec.  2,]  One  Form  op  Action.  63 

S.  Stewart,  and  Kichard  C.  Outcalt,  the  defendants  in  error,  and 
removed  into  the  circuit  court  of  the  United  States  for  the  dis- 
trict of  Nebraska  on  the  petition  of  the  defendants,  upon  the 
ground  that  the  suit  was  one  arising  under  the  laws  of  the 
United  States.  A  motion  to  remand  the  cause  to  the  State  court 
was  overruled,  and  a  demurrer  to  the  complaint  was  sustained, 
and  final  judgment  entered  for  the  defendants;  whereupon  the 
plaintiff  sued  out  this  writ  of  error,  assigning  for  error  these 
rulings  of  the  circuit  court.  The  petition  alleges  the  plaintiff 
loaned  the  Capital  National  Bank  of  Lincoln  $11,500,  and  seeks 
by  this  suit  to  recover  the  same  from  the  defendants,  who  were 
directors  of  the  bank,  upon  grounds  to  be  presently  stated. 

"We  have  found  it  necessary  to  consider  only  two  of  the  many 
questions  discussed  in  the  briefs  of  counsel.  It  is  earnestly  con- 
tended that  this  is  not  a  suit  arising  under  the  laws  of  the 
United  States,  but  is  an  action  for  deceit,  with  which  the  na- 
tional banking  act  has  no  connection. 

The  soundness  of  this  contention  must  be  tested  by  the  aver- 
ments of  the  petition.  The  petition  states  a  single  cause  of 
action,  founded  wholly  upon  the  alleged  misfeasance  and  non- 
feasance of  the  defendants  in  their  capacities  as  officers  and 
directors  of  a  national  bank.  The  alleged  official  misconduct  of 
the  defendants  which  is  relied  upon  as  stating  a  ground  of  action 
is  particularly  set  out.  It  is  alleged  that  they  made  false  and 
misleading  reports  as  to  the  condition  of  the  bank  to  the  comp- 
troller of  the  currency,  by  which  the  plaintiff  was  deceived  and 
misled  as  to  the  condition  of  the  bank ;  that  loans  were  made  to 
persons  in  excess  of  the  amount  which  could  lawfully  be  loaned 
to  any  one  person;  that  they  made  large  loans  to  the  president 
and  cashier  of  the  bank,  in  violation  of  the  banking  act,  and 
declared  and  paid  dividends  when  there  were  no  earnings  or 
profits  out  of  which  to  pay  them ;  that  all  these  acts  were  viola- 
tions of  the  national  banking  act,  and  of  the  duties  of  the 
defendants  as  officers  and  directors  of  the  bank  under  that  act ; 
and  the  complaint  concludes  with  the  averment  that,  ' '  by  reason 
of  the  several  violations  of  the  banking  law  as  above  set  forth," 
the  defendants  are  liable  to  the  plaintiff  in  tlie  sum  sued  for. 
In  view  of  the  last  averment  of  the  petition  it  is  difficult  to  per- 
ceive how  the  plaintiff  can  successfully  maintain  that  this  cause 
of  action  does  not  arise  under  a  law  of  the  United  States. 

It  is  said  in  the  brief  of  the  learned  counsel  for  the  plaintiff 


64  Actions.  [Chap,  I. 

in  error  that,  if  certain  allegations  of  the  petition  state  a  cause 
of  action  for  a  violation  of  the  national  banking  act,  the  preced- 
ing paragraphs  state  an  independent  cause  of  action  for  deceit. 
A  petition  containing  a  single  paragraph  cannot  be  made  to  sub- 
serve the  purpose  of  two  distinct  and  dissimilar  causes  of  action. 
Kewaunee  Co.  v.  Decker,  30  Wis.  624.  We  feel  constrained  to 
hold  that,  properly  construed,  the  petition  contains  but  one  para- 
graph or  count,  and  states  but  one  cause  of  action,  and  that  the 
cause  of  action  stated  is  one  for  the  misfeasance  and  mismanage- 
ment of  the  affairs  of  the  bank  by  the  defendants  as  its  officers 
and  directors.  We  cannot  adopt  the  view  of  the  plaintiff  in 
error, — that  those  clauses  of  the  petition  which  state,  or  tend  to 
state  a  cause  of  action  for  deceit  at  common  law,  should  be 
segregated  from  the  other  clauses  of  the  petition,  and  held  to 
constitute  the  statement  of  the  cause  of  action.  The  court  can- 
not reject  the  allegations  of  the  petition  which  do  state  a  cause 
of  action  under  the  banking  act,  for  the  purpose  of  converting 
mere  matter  of  inducement  or  surplusage,  contained  elsewhere 
in  the  petition,  into  a  substantive  statement  of  a  cause  of  action 
different  from  that  which  the  petition  in  terms  declares  to  be  the 
foundation  of  the  action. 

The  plaintiff  was  not  bound  to  state  the  legal  effect  of  the 
facts  set  out  in  his  petition,  but,  having  done  so,  he  cannot  com- 
plain if  his  adversary  and  the  court  accept  and  act  upon  his  own 
theory.  Especially  is  this  so  when  the  petition  is  ambiguous,  and 
will  support  that  theory  as  well  or  better  than  any  other. 

In  the  sense  of  the  word,  as  used  in  code  pleading,  there  is 
but  one  paragraph  in  this  petition.  The  term  "paragraph,"  as 
used  in  code  pleading,  means  an  entire  or  integral  statement  of  a 
cause  of  action.  It  is  the  equivalent  of  "count"  at  common  law. 
It  may  embrace  one  sentence  or  many  sentences;  but,  whether 
one  or  many,  it  constitutes  a  statement  of  a  single  cause  of 
action.  It  is  a  requirement  of  some  codes  that,  if  the  petition 
contains  "more  than  one  cause  of  action,  each  shall  be  distinctly 
stated  in  a  separate  paragraph  and  numbered"  (Code  Ark.,  Sec. 
5027)  ;  and  all  of  them  require  that  each  cause  of  action  shall 
be  separately  stated  and  numbered.^  The  Nebraska  Code  pro- 
vides that,  "where  the  petition  contains  more  than  one  cause  of 

9  For  the   provision   of  the   New       note   p.   3,   ante. 
York    Code    on    this    subject,    see 


Sec.  2.]  One  Form  of  Action.  65 

action,  each  shall  be  separately  stated  and  numbered."  Consol. 
St.,  Neb.  1891,  Sec.  4633  (93).  And  the  Supreme  Court  of 
that  state,  construing  this  section,  have  said:  "A  plaintiff  can- 
not jumble  his  causes  of  action  together."  Bank  v.  Boiling,  24 
Neb.  821,  40  N.  W.  411.  If,  in  drafting  the  petition,  the  pleader 
supposed  he  was  stating  more  than  one  cause  of  action,  he  would 
undoubtedly  have  separately  stated  and  numbered  them,  as  re- 
quired by  the  Nebraska  Code.  No  one  can  point  out  in  this 
petition  where  the  statement  of  one  cause  of  action  ends  and 
another  begins.  The  plaintiff  cannot  reform  or  amend  his  peti- 
tion in  this  court.  If  it  were  possible  to  spell  out  of  the  aver- 
ments of  this  petition,  taken  separately  or  together,  an  action 
for  deceit,  the  court  would  be  precluded  from  attaching  that 
meaning  to  them  by  the  positive  statement  contained  in  the 
petition  itself  that  the  action  is  grounded  on  the  "violations  of 
the  banking  law"  therein  set  out.  Section  5239  of  the  Revised 
Statutes  of  the  United  States  provides  that: 

"If  the  directors  of  any  national  banking  association  shall 
knowingly  violate,  or  knowingly  permit  any  of  the  officers, 
agents  or  servants  of  the  association  to  violate  any  of  the  pro- 
visions of  t]iis  title,  all  the  rights,  privileges  and  franchises  of 
the  association  shaU  be  thereby  forfeited.  *  *  *  And  in 
cases  of  such  violation,  every  director  who  participated  in,  or 
assented  to,  the  same  shall  be  held  liable  in  his  personal  and 
individual  capacity  for  all  damages  which  the  association,  its 
shareholders,  or  any  other  person  shall  have  sustained  in  conse- 
quence of  such  violation." 

It  is  obvious  that  the  plaintiff,  in  the  inception  of  this  case, 
had  in  view  the  enforcement  of  the  defendants'  liability  under 
the  last  clause  of  this  section.  Under  section  2  of  the  judiciary 
act  of  August  13,  1888,  a  removal  cannot  be  sustained  upon  a 
statement,  in  the  defendant's  petition  therefor,  that  the  suit  is 
one  arising  under  the  laws  of  the  United  States,  but  that  fact 
must  appear  by  the  plaintiff's  statement  of  his  own  claim.  Ten- 
nessee V.  Union  &  Planters'  Bank,  152  U.  S.  454,  14  Sup.  Ct. 
654.  In  this  cause  the  plaintiff's  petition  does  disclose  that  the 
cause  of  action  is  one  arising  under  the  laws  of  the  United 
States.  Tennessee  v.  Davis,  100  U.  S.  257,  264 ;  Cooke  v.  Avery, 
147  U.  S.  375,  13  Sup.  Ct.  340 ;  Walker  v.  Bank,  5  U.  S.  App. 
440,  5  C.  C.  A.  421,  56  Fed.  76. 

The  petition  shows  that  the  bank  of  which  the  defendants  are 


66  Actions.  [Chap.  I. 

officers  and  directors  is  insolvent,  and  has  passed  into  the  hands 
of  a  receiver  appointed  by  the  comptroller  of  the  currency  under 
the  national  banking  act.    The  liability  of  the  defendants,  what- 
ever it  may  be,  for  the  acts  complained  of  in  the  petition,  is  an 
asset  of  the  bank,  belonging  equally  to  all  of  the  creditors  in 
proportion   to   their   respective   claims,    and    cannot   be   appro- 
priated, in  whole  or  in  part,  by  a  single  creditor  to  the  exclusive 
payment  of  his  own  claim.    It  is  the  policy  of  the  national  bank- 
ing act  to  secure  the  ratable  distribution  of  the  assets  of  an 
insolvent  national  bank  among  all  its  creditors.    Assuming  that 
the  defendants  are  liable  in  damages  for  the  acts  complained  of 
in  the  petition,  they  are  liable  at  the  suit  of  the  receiver,  who 
is  the  statutory  assignee  of  the  bank,  and  the  proper  party  to 
institute  all  suits  for  the  recovery  of  the  assets  of  the  bank,  of 
whatever  nature,  to  the  end  that  they  may  be  ratably  distrib- 
uted among  its  creditors.    Rev.  Statutes  U.  S.,  Sec.  5234;  Ken- 
nedy V.  Gibson,  8  Wall.  498;  Bank  v.   Colby,  21  Wall.  609; 
Hornor  v.  Henning,  93  U.  S.  228;  Stephens  v.  Overstoltz,  43 
Fed.  771 ;  Bank  v.  Peters,  4  Fed.  13.    The  law  will  not  allow  one 
creditor  to  appropriate  the  whole  liability  of  the  directors  to 
his  own  benefit.     It  is  w^ell  settled  that  an  injury  done  to  the 
stock  and  capital  of  a  corporation  by  the  negligence  or  mis- 
feasance of  its  officers  and  directors  is  an  injury  done  to  the 
whole  body  of  stockholders  in  common,  and  not  an  injury  for 
which  a  single  stockholder  can  sue.     Smith  v.  Hurd,  12  Mete. 
(Mass.),  371;  Howe  v.  Barney,  45  Fed.  668.     The  same  rule 
applies  to  the  creditors  of  a  corporation.     But  it  is  said  the 
plaintiff  is  not  suing  as  a  creditor  of  the  bank,  or  for  its  mis- 
management, but  for  the  fraud  and  deceit  practiced'  upon  him 
through  the  defendants'  report  to  the  comptroller  of  the  cur- 
rency by  which  he  alone  was  damaged.     As  we  have  seen,  the 
frame  of  the  petition  will  not  support  this  contention.    The  mo- 
tion to  remand  was  properly  overruled,  and  the  demurrer  to 
the  petition  rightly  sustained,  upon  the  ground  that  the  plaintiff 
is  not  the  proper  party  to  sue  for  the  cause  of  action  stated  in 
the  complaint  as  we  construe  it.     These  rulings  make  it  uiniec- 
essary  to  express  any  opinion  upon  the  other  questions  so  fully 
and  ably  argued  by  counsel.    The  judgment  of  the  circuit  court 
is  affirmed. 


Sec.  2.]  One  Form  of  Action.  67 

GARTNER  v.  CORWINE. 

Supreme  Court  of  Ohio,  1897.     57  Ohio  St.  206. 

Williams,  J. :  Suit  was  brought  by  Corwiue  against  Gartner 
to  recover  damages  for  breach  of  warranty  in  the  sale  of  a 
horse.  The  petition  alleges,  in  addition  to  the  warranty  and  its 
breach,  that  the  defendant  knew,  at  the  time  of  the  sale,  that  the 
animal  was  not  what  it  was  warranted  to  be.  On  a  trial  of  the 
issues  joined  by  a  denial  of  the  warranty  and  its  breach,  and 
of  the  defendant's  knowledge  that  the  warranty  was  false,  the 
jury  were  instructed,  in  substance,  that,  to  entitle  the  plaintiff 
to  a  verdict  in  the  case,  it  was  necessary  for  him  to  prove,  by  a 
preponderance  of  the  evidence,  that  the  defendant  knew  the  war- 
ranty was  false  in  some  material  particular,  or  had  reason  to 
believe  it  to  be  false.  The  judgment  rendered  on  the  verdict, 
which  was  for  the  defendant,  was  reversed  for  error  in  giving 
the  foregoing  instruction;  and,  upon  the  question  concerning 
which  the  courts  below  entertained  different  opinions,  the  case 
has  been  ordered  to  be  reported. 

The  contention  of  the  counsel  for  the  plaintiff  in  error  ap- 
pears to  be  that  the  effect  of  the  averment  charging  the  defend- 
ant with  knowledge  of  the  falsity  of  the  warranty  was  to  make 
the  action  one  for  deceit  or  fraud,  and  therefore  proof  of  such 
knowledge  was  essential  to  plaintiff's  right  of  recovery;  other- 
wise the  petition  would  include  two  inconsistent  causes  of  action 
which  could  not  be  joined.  The  code  permits  the  plaintiff  to 
state  the  facts  which  constitute  his  cause  of  action;  and  when, 
upon  any  of  the  facts  so  stated,  he  is  entitled  to  recover,  he  can- 
not be  denied  that  right  because  he  has  alleged  other  facts  that 
he  is  unable  to  prove.  A  warranty  in  a  sale  of  chattel  prop- 
erty is  a  part  of  the  contract,  and  the  warrantor  is  bound  by  it, 
and  answerable  in  damages  for  its  breach,  though  he  may  have 
honestly  believed  the  article  to  be  as  warranted.  But  the  rep- 
resentations of  the  seller  may  fall  short  of  an  express  warranty, 
and  yet  may  be  such  as  to  induce  the  purchaser  to  rely  upon 
them,  and  entitle  him  to  redress  against  the  seller  if  the  latter 
knew  they  were  false,  or  recklessly  made  them  without  reason- 
able ground  for  believing  them  to  be  true.  And  which  of  these 
phases  of  his  case  the  purchaser  may  be  able  to  sustain  by  proof 
can  only  be  determined  on  the  trial ;  but  proof  of  either  entitles 


68  Actions.  [Chap.  I. 

him  to  relief.  And  it  is  competent,  we  think,  for  the  plaintiff 
to  state  in  his  pleading  all  the  facts  of  the  transaction  which 
enter  into  his  right  to  recover,  as  he  believes  them  to  be,  though 
they  present  different  grounds  of  recovery,  and  admit  of  differ- 
ent modes  or  measures  of  relief,  and  to  ultimately  have  that 
relief  to  which  the  allegations  proved  showed  him  entitled.  The 
petition  of  the  plaintiff  alleges  an  express  warranty  of  the 
horse,  and  a  breach  of  that  warranty,  and  his  right  to  recover 
damages  resulting  from  that  breach  was  not  affected  by  the 
allegation  of  the  defendant's  knowledge  of  the  falsity  of  the 
warranty.  The  latter  allegation  did  not,  as  counsel  for  the 
plaintiff  in  error  contends,  change  the  action  to  one  exclusively 
for  deceit,  nor  is  it  inconsistent  with  those  upon  the  warranty. 
They  may  all  be  true.  Whether  there  is  more  than  one  cause  of 
action  stated  in  the  petition  is  a  question  upon  which  differences 
of  opinion  may  exist.  But  it  need  not  now  be  determined.  If 
there  are  two — one  for  breach  of  the  warranty,  and  the  other 
for  fraud,  they  grew  out  of  the  same  transaction,  and  may 
properly  be  joined^"  in  the  same  petition ;  and,  no  motion  having 
been  made  to  require  them  to  be  separately  stated,  that  objec- 
tion to  the  petition,  if  it  were  open  to  it,  was  waived  by  an- 
swer.^ In  favor  of  the  view  that  there  is  but  one  cause  of  action 
stated,  it  may  be  said  that  there  was  but  a  single  transaction  be- 
tween the  parties  (the  negotiations  resulting  in  the  sale  of  the 
horse)  ;  there  was  but  one  wrong  of  the  defendant  (the  sale  of 
an  unsound  animal  as  and  for  a  sound  one)  ;  and  there  is  but 
one  right  of  the  plaintiff  growing  out  of  the  wrong,  and  that 
is  to  have  redress  for  the  injury  he  sustained  in  consequence  of 
it,  and  for  which  he  can  have  but  one  recovery.  And  a  state- 
ment of  all  the  facts  of  the  transaction,  with  a  demand  for  the 
relief  desired,  as  one  cause  of  action,  seems  more  in  harmony 
with  our  reformed  system  of  pleading  tlian  a  repetition  of 
them,  which  becomes  necessary,  in  part  at  least,  in  their  state- 
ment as  separate  causes  of  action.  But,  in  either  event,  whether 
the  petition  states  but  one  cause  of  action  or  two,  the  plaintiff, 
upon  proof  of  the  warranty,  and  that  it  was  broken,  to  his  dam- 
age, was  entitled  to   a  verdict,  notwithstanding  he   failed  to 

10  See  Harris  v.  Simplex  Tractor  rately  is  not  a  ground  for   demurrer, 

Co.,    140    Minn.    278,    (1918).  and  can  only  be   taken   advantage 

1  That  the  failure  to  state  two  of  by  motion.  See  Bass  v.  Com- 
er   more    causes    of    action    sepa-  stock,  38  N.  Y.  21,  post. 


Sec.  2.] 


One  Form  op  Action. 


69 


establish  by  proof  the  defendant's  knowledge  that  the  warranty 
was  false;  and,  as  this  right  was  denied  him  by  the  instruction 
given  to  the  jury,  the  reversal  of  the  judgment  for  that  reason 
was  not  error.2 

Judgment  affirmed. 


ROGERS  V.  DUHART. 

Supreme  Court  of  California,  1893.     97  Cat.  500. 

Paterson,  J. :  The  complaint  alleges  that  the  executors  of 
the  estate  of  Miguel  Leonis  let  and  demised  unto  the  plaintiff 
certain  lands  belonging  to  the  estate  for  the  term  of  eight 
months  from  and  after  Feb.  1,  1891,  and  thereupon  the  plaintiff 
took  possession  and  has  ever  since  held  the  same;  that  on  Feb.  1, 
1891,  the  defendant  "entered  upon  the  plaintiff's  said  described 


2  See  Stanley  v.  Day,  185  Ky. 
362,  (1919),  to  the  effect  that  an 
action  for  a  breach  of  warranty 
is  not  converted  into  a  tort  case 
by  an  allegation  of  scienter.  In 
Marsh  v.  Webber,  13  Minn.  109, 
(1868),  it  was  thought  that  a 
count  should  not  be  so  drawn  as 
to  embrace  both  a  breach  of  war- 
ranty and  a  fraud,  but  the  objec- 
tion ought  to  be  taken  by  motion 
to  elect  or  to  strike  out.  In  Knapp 
V.  Walker,  73  Conn.  459,  (1900), 
it  was  apparently  ruled  that  the 
two  causes  might  properly  be 
stated  in  a  single  count.  (For 
the  usual  requirements  of  separate 
statements  in  such  cases,  see  the 
section  on  Joinder  of  Causes  of 
Action). 

For  the  view  that  a  complaint 
like  that  in  the  principal  case 
should  be  construed  as  stating  a 
case  for  fraud  only,  and  hence 
would  not  support  a  recovery  for 
breach    of    warranty    merely,    see 


Eoss  V.  Mather,  51  N.  Y.  108, 
(1872);  Pierce  v.  Carey,  37  Wis. 
232,  (1875).  Compare  Williamson 
v.  Allison,  2  East,  446,  (Court  of 
K.  B.  1802),  to  the  effect  that  a 
false  warranty  without  scienter, 
is  a  tort,  and  hence  the  scienter, 
though  alleged,  need  not  be  proved. 
And  so  in  Lassiter  v.  Ward,  33 
N.  C.  443,  (1850  before  the  adop- 
tion of  the   code). 

Some  of  the  difficulties  that  may 
arise,  where  a  complaint  is  con- 
strued as  embracing  both  a  tort 
and  a  breach  of  contract,  appear 
iu  Frechette  v.  Eaon,  145  Wis.  589, 
(1911);  there  a  complaint  against 
a  surgeon,  clearly  framed  for  neg- 
ligence, incidentally  stated  enough 
to  amount  to  a  breach  of  the  con- 
tract to  treat  plaintiff,  and  de- 
fendant pleaded  the  statute  of 
limitations  which  has  run  against 
the  tort  claim,  but  not  against  the 
contract   claim. 


70  Actions.  [Chap.  I. 

property,  and  drove  into  and  kept  upon  the  said  land  about 
400  head  of  cattle,  and  about  3,000  head  of  sheep,  and  trod 
down  and  depastured  and  destroyed  all  the  grass  and  herbage 
thereon,  and  so  kept  the  said  cattle  and  sheep  upon  the  same 
continually  thereafter  and  until  on  or  about  the  17th  day  of 
April,  1891,  without  the  consent  of  the  plaintiff,  and  to  his 
damage  in  the  sum  of  $2,000."     The  facts  of  the  case  are  not 
disputed.     They  show  that  defendant  had  the  right  to  pasture 
400  head  of  cattle  upon  the  lands  until  the  first  day  of  Sep- 
tember, 1890;  that,  after  his  right  expired,  the  executors  gave 
him  "permission  to  pasture  upon  the  said  lands  his  gentle  band 
of  cattle,  consisting  of  50  or  60  head,  until  the  31st  of  Decem- 
ber, 1890,  in  consideration  of  the  said  defendant  watching  over 
the  place  and  keeping  the  cattle  of  all  other  parties  off;"  that  at 
the  time  of  giving  said  permission  the  executors  notified  the  de- 
fendant "that  he  must  remove  his  cattle  on  the  31st  day  of  De- 
cember, 1890,  and  that  under  no  consideration  was  the  defend- 
ant, Duhart,  to  keep  or  to  allow  any  sheep  to  run  upon  the  said 
ranch,  and  that  was  the  only  permission  given  the  defendant,  by 
either  of  the  executors,  to  be  or  have  its  cattle  upon  the  said 
ranch  after  Sept.  1,  1890;"  that  a  few  days  after  Sept.  1st,  one 
of  the  executors  told  the  defendant  to  remove  his  cattle  from 
the  ranch,  and  that  he  gave  said  executor  "to  understand  that 
he  had  removed  them,  though  he  did  not  state  so  in  so  many 
words,   (he  stated  that  he  had  sold  them,  or  was  about  to  sell 
them;)  that  the  defendant  permitted  2,000  head  of  sheep,  300 
head  of  cattle,  and  25  head  of  horses  belonging  to  him  to  graze 
upon  the  land  in  question  from  Jan.  1,  1891,  until  April  17, 
1891 ;  that  neither  the  plaintiff  nor  the  executors  had  knowledge 
of  the  fact  that  the  plaintiff's  (defendant's?)  sheep,  cattle,  and 
horses  were  upon  the  lands  subsequent  to  December  31st,  1890, 
but  supposed  that  he  had  removed  them  from  the  premises,  in  ac- 
cordance with  his  instructions,  and  that  they  did  not  know  that 
he  had  abused  the  privilege  granted  to  him  on  or  about  Sept.  1, 
1890 ;  that  the  lands  described  in  the  complaint  were  uninclosed 
pasture  lands,  and  that  neither  plaintiff  or  any  one  on  his  be- 
half took  possession  of  the  land  or  any  part  thereof  until  about 
the  12th  day  of  April,  1891 ;  that  plaintiff'  has  sustained  dam- 
ages in  the  sum  of  $900  by  reason  of  the  wrongful  act  of  the 
defendant,  as  charged  in  the  complaint. 

The  briefs  are  devoted  chiefly  to  a  discussion  of  the  question 


Sec.  2.]  One  Form  of  Action.  71 

whether  an  action  trespass  quare  clausum  f regit  can  be  main- 
tained by  one  who  was  not  in  the  actual  possession  of  the  land 
at  the  time  the  acts  complained  of  were  performed.  The  re- 
spondent refers  to  cases  showing  that  actual  possession  is  not  in 
all  cases  essential,  and  the  appellant  insists  that  the  exceptions 
are  confined  to  cases  in  which  the  plaintiffs  were  the  owners, — 
where  the  title  draws  to  it  the  possession  for  the  purpose  of  re- 
dressing injuries  to  the  estate.  It  would  be  a  useless  thiug  to 
attempt  to  reconcile  the  cases  on  this  subject.  Decisions  ad- 
hering to  the  common  law  rules  of  pleading  are  seldom  of  any 
value  in  determining  the  sufficiency  of  a  pleading  under  the 
code,  and  sometimes  lead  to  serious  departures  from  its  letter 
and  spirit.  With  us,  mere  forms  of  action  are  cast  aside.  Every 
action  is  now  in  effect  a  special  action  on  the  case,  (Jouos  v. 
Cortes,  17  Cal.  487;  Goulet  v.  Asseler,  22  N.  Y.  225;  Matthews 
V.  McPherson,  65  N.  C.  189;  Brown  v.  Bridges,  31  la.  145;)  and 
the  rigid  formalism  and  subtle  distinctions  found  in  the  rules 
governing  the  common  law  forms  of  action  are  as  inapplicable 
and  inane  under  the  modern  plan  of  procedure  as  the  highly 
dramatic  speech,  senseless  repetitions,  and  symbolic  gestures  of 
the  formulae  prescribed  for  the  five  forms  of  the  civil  actions 
by  the  decemvirs  of  ancient  Rome.  Does  the  complaint  state 
in  ordinary  and  concise  language  facts  sufficient  to  constitute  a 
cause  of  action?  That  is  the  question,  and  not  whether  it  is 
sufficient  to  show  trespass  quare  clausum,  trespass  vi  ct  armis, 
or  any  other  technical  form  of  action,  ex  delicto  or  ex  contractu. 
The  common  law  rule  is  that,  if  plaintiff  declare  in  trespass 
quare  clausum  where  the  action  should  be  case,  he  will  be  non- 
suited at  the  trial;  but  under  our  system,  if  the  facts  alleged 
and  proved  are  such  as  would  have  entitled  the  plaintiff  to  re- 
lief under  any  of  the  recognized  forms  of  action  at  common 
law,  they  are  sufficient  as  the  basis  of  relief,  whatever  it  may 
be.  The  bill  of  exceptions  herein  states  facts  w^hich  would  en- 
title plaintiff  to  relief  in  an  action  on  the  case,  which  includes 
torts  not  committed  with  force,  actual  or  implied,  injuries  com- 
mitted to  property  of  which  plaintiff  has  the  reversion  onlj', 
and  in  fact  all  injuries  not  provided  for  in  other  forms  of  ac- 
tions. The  fact  that  the  plaintiff  alleges  he  was  in  possession  is 
immaterial.  The  allegation  may  be  treated  as  surplusage.  "Su- 
perfluity does  not  vitiate."  "The  nature  of  the  right  of  action 
has  not  been  changed,  nor  has  the  amount  of  damages  recover- 


72  Actions.  [Chap.  I, 

able  been  effected ;  but  the  special  and  the  technical  rules  which 
govern  the  use  of  the  two  common  -law  actions  mentioned  (tres- 
pass and  case)  have  certainly  been  abrogated."  Pom.  Rem.  & 
Rem.  Rights,  §  232.  The  damages  recoverable  in  the  common 
law  action  of  trespass  quare  clausum  are  for  the  wrong  done  to 
the  plaintiff's  possession  as  well  as  to  the  inheritance,  and,  where 
the  entry  is  with  actual  force,  treble  damages  are  frequently 
allowed.  While  the  plaintiff  is  not  permitted  to  recover  sucli 
damages  under  the  facts  proved  in  the  case,  he  is  certainly  en- 
titled to  recover  such  damages  as  would  have  been  recoverable 
if  the  action  were  the  common  law  "action  of  case."^  To  hold 
that  the  plaintiff  could  not  recover  would  be  to  restore  the  old 
distinctions  between  these  technical  actions.  Section  232,  supra, 
note  2.  There  is  nothing  decided  in  any  of  the  cases  upon 
which  the  appellant  relied  opposed  to  the  views  which  we  have 
expressed.  The  statements  upon  this  subject  in  Holman  v.  Tay- 
lor, 31  Cal.  340,  and  Pollock  v.  Cummings,  38  Cal.  685,  arc 
dicta.  In  Uttendorfer  v.  Saegers,  50  Cal.  497,  it  was  alleged 
that  the  defendant  forcibly  entered  upon  the  premises,  and  tore 
down  the  buildings,  etc.  It  was  claimed  by  the  appellant  that 
the  action  was  trespass  quare  clausum.  Respondent  denied  this, 
asserting  that  it  was  an  action  by  the  owner  for  damages  done  to 
the  inheritance.  The  court  held  with  the  appellant,  but  did  not 
hold  that  the  action  could  not  be  maintained  unless  the  plain- 
tiff was  in  possession.  The  case  simply  holds  that  evidence  of 
the  possession  of  the  tenant  was  material  on  the  questioji  of 
damages.  The  question  of  the  sufficiency  of  the  complaint  or 
of  the  facts  found  to  constitute  a  cause  of  action  in  case  was  not 
considered  in  any  of  the  cases  referred  to.  In  Heilbron  v.  Hein- 
lon,  72  Cal.  371,  (14  Pac.  22),  the  court  held  that  the  defend- 
ants were  entitled  to  show  that  at  the  time  of  the  acts  charged 
in  the  complaint  they  were  in  quiet  and  peaceable  possession  of 
the  land,  claiming  the  same  under  certificates  of  purchase  and 
patents,  and  had  continuously  used  and  occupied  it  for  10  or  11 
years  prior  to  the  commencement  of  the  action.  The  decision 
followed  the  doctrine  announced  in  Page  v.  Fowler,  37  Cal.  100, 
viz. :  that  a  personal  action  cannot  be  made  the  means  of  litigat- 
ing and  determining  the  rights  to  the  possession  of  real  prop- 

3  See  same  result  in  Brown  v.  and  possession,  and  a  wrongful 
Bridges,  31  la.,  138  (1870),  under  entry  and  destruction  of  fences, 
a     complaint     alleging     ownership       etc. 


Sec.  2.]  One  Form  of  Action.  73 

erty,  as  between  conflicting  claimants.  In  Bank  v.  Turman, 
(Cal.)  30  Pac.  Rep.  966,  it  appeared  that  the  plaintiff  did  not 
have  title,  and  he  neither  had  possession  nor  the  right  of  pos- 
session. In  the  case  at  bar  there  is  no  pretense  that  the  defend- 
ant was  claiming  adversely  to  any  one.  He  vacated  the  prem- 
ises promptly  upon  receiving  a  written  notice  on  behalf  of  plain- 
tiff demanding  possession,  and  so  states  in  his  answer.  He  was 
never,  at  any  time,  after  Sept.  1st,  1890,  a  tenant.  Admitting 
that,  when  a  tenancy  is  shown,  the  presumption  from  his  con- 
tinued possession  is,  that  he  holds  in  the  same  capacity,  there  is 
here  shown  an  express  agreement,  by  the  terms  of  which  he  was 
simply  to  have  the  privilege  of  pasturing  50  or  60  head  of  cattle 
on  the  land,  in  consideration  of  his  services  in  caring  for  the 
property,  and  seeing  that  other  stock  did  not  trespass  on  the 
land.  The  presumption  is,  therefore,  overcome.  Bertie  v.  Beau- 
mont, 16  East  33.  Defendant  contends  that  he  was  a  tenant  at 
sufferance  after  Dec.  31,  1891,  but  this  is  a  mistake;  he  was  a 
mere  servant.  Haywood  v.  Miller,  3  Hill  90 ;  Robertson  v. 
Georgia,  7  N.  H.  308.  His  possession  was  the  possession  of  his 
employer.  He  could  not  have  maintained  an  action  against 
anyone  for  trespass,  nor  would  he  have  been  a  necessary  party 
plaintiff  with  the  owner  in  a  suit  to  recover  damages  for  an 
injury  to  the  property.  Ogden  v.  Gibbons,  5  N.  J.  Law  599. 
Whether  he  be  regarded  as  a  servant  or  licensee,  the  result  is 
the  same.  He  was  there  for  a  particular  purpose,  and  the  mo- 
ment he  abused  the  privilege,  or  committed  any  act  hostile  to 
the  interest  of  his  employer  or  licensor,  he  became  a  trespasser. 
Lyford  v.  Putnam,  35  N.  H.  563 ;  Looram  v.  Burlingame,  16  La. 
Ann.  199 ;  People  v.  Fields,  1  Lans.  222 ;  Haskin  v.  Record,  32 
Vt.  575. 

Judgment  and  order  affirmed. 


JOSEPH  DESSERT  LUMBER  CO.  v.  WADLEIGH. 

Supreme  Court  of  Wisconsin,  1899.    103  Wis.  318. 

Action  by  the  Joseph  Dessert  Lumber  Co.  against  Matthew 
Wadleigh.  There  was  a  judgment  of  non-suit,  and  the  plaintiff 
brings  error. 


74  Actions.  [Chap.  I. 

The  complaint  in  this  action,  omitting  the  formal  allegations, 
is  as  follows:  "That,  during  the  winter  of  1896  and  1897,  the 
defendant  unlawfully,  and  with  force,  broke  and  entered  upon 
the  plaintiff's  land  in  the  county  of  Marathon,  and  state  of 
Wisconsin,  known  and  described  as  follows,  to-wit:  Lots  6  and 
16  of  section  18  in  township  26  north,  of  range  9  east,  and  there 
cut  down  and  carried  away  trees  and  timber  belonging  to  the 
plaintiff,  of  the  value  of  $170,  and  converted  and  disposed  of 
the  same  to  his  own  use,  to  the  damage  of  the  plaintiff  $170." 
The  answer  was  a  general  denial.  On  the  trial,  plaintiff  made 
proof  that  about  15,000  feet  of  timber  had  been  cut  on  the  lands 
described;  that  eight  of  these  logs  were  found,  with  a  lot  of 
other  logs,  banked  on  Plover  River,  about  three  miles  from  this 
land ;  that  the  stumpage  value  was  $4  to  $5  per  1,000  feet,  and 
the  logs  on  the  bank  were  worth  about  $8  per  1,000  feet;  and 
that  the  logs  at  the  banking  place  had  been  cut  by  one  Luchia, 
and  had  been  sold  by  him  to  defendant  on  the  bank.  It  was 
admitted  that  the  defendant  got  the  logs  that  were  on  the  bank, 
drove  them  to  his  mill,  sawed  them  into  lumber,  and  sold  the 
lumber.  At  the  close  of  plaintiff's  testimony,  the  defendant 
moved  for  a  non-suit,  on  the  ground  that  the  cause  of  action 
stated  was  for  injury  to  the  lands,  and  no  proof  had  been  of- 
fered to  connect  the  defendant  wdtli  the  cutting,  or  transporta- 
tion of  the  logs  from  the  land.  This  motion  was  granted,  and 
a  judgment  for  costs  was  entered  in  favor  of  the  defendant. 
Plaintiff  brings  the  case  to  this  court  by  writ  of  error. 

Bardeen,  J.  "While  it  is  true  that  the  code  has  abolished  the 
distinctions  between  actions  at  law  and  suits  in  equity,  and  has 
provided  that  there  shall  be  but  one  form  of  action  for  the  en- 
forcement and  protection  of  private  rights  and  the  redress  and 
prevention  of  private  wrongs,  yet  there  still  exist  certain  ele- 
ments or  features  pertaining  to  actions  which  are  unchanged 
thereby.  These  do  not  belong  to  the  action  as  a  judicial  in- 
strument for  establishing  a  right,  but  inhere  to  and  belong  to 
the  primary  and  remedial  rights  themselves.  For  the  enforce- 
ment and  protection  of  these  rights  but  one  form  of  action  exists, 
but,  as  to  the  remedies  which  lie  back  of  all  forms  of  actions,  the 
law  still  recognizes  and  observes  distinctions  which  are  as  vital 
as  before  the  code.  It  is  just  as  necessary  today  as  it  ever  was 
that  a  suitor  should  so  state  his  cause  of  action  that  the  court 
may  determine  whether  it  be  ex  contractu  or  ex  delicto.    In  the 


Sec.  2.]  One  Form  op  Action.  75 

one  case  the  plaintiff  would  have  to  be  satisfied  with  a  mere 
money  judgment,  while  in  the  other  an  order  of  arrest  might 
issue,  and  an  execution  against  the  body.  This  certainty  of 
statement  is  also  important  for  the  purpose  of  determining  the 
proper  tribunal  for  the  trial  of  the  action.  Under  the  law, 
certain  actions  are  local  to  the  extent  that  the  trial  thereof  may 
be  compelled  in  the  county  where  the  property  affected  is  situ- 
ated. It  is  therefore  quite  essential  that  the  complaint  should 
be  sufficiently  specific  in  allegation  as  to  enable  the  parties  and 
the  court  to  say  whether  the  action  be  local  or  transitory.  It 
is  these  primary  rights  created  by  the  law,  and  the  wrongs  com- 
mitted against  them,  and  the  remedial  rights  resulting  from 
such  wrongs,  which  are  to  be  considered  in  the  practical  ad- 
ministration of  justice,  and  which  remain  unaffected  by  the 
reform  legislation.  When  a  complaint  is  presented  for  judicial 
inspection,  it  is  the  court's  first  duty  to  ascertain  the  nature  of 
the  cause  of  action  alleged,  as  well  to  protect  the  rights  of  parties 
as  to  the  place  of  trial  as  to  administer  the  proper  remedy.  It 
is  suggested  that  the  complaint  in  this  action  has  a  double 
aspect,  and  may  be  either  what  was  called  in  the  old  practice 
a  complaint  for  trespass  to  lands  or  one  of  trover  for  the  con- 
version of  the  timber.  The  language  of  Chief  Justice  Dixon  in 
Supervisors  v.  Decker,  30  Wis.  624,  seems  especially  applicable 
to  the  contention  of  the  plaintiff's  counsel  in  that  regard.  He 
says:  **It  would  certainly  be  a  most  anomalous  and  hitherto 
unknown  condition  of  the  laws  of  pleading,  were  it  established 
that  a  plaintiff  in  a  civil  action  could  file  and  serve  a  complaint, 
the  particular  nature  and  object  of  which  no  one  could  tell, 
but  which  might  and  should  be  held  good  as  a  statement  of  two 
or  three  or  more  different  and  inconsistent  causes  of  action,  as 
one  in  tort,  one  upon  money  demand  on  contract,  and  one  in 
equity,  all  combined  or  fused  and  moulded  into  one  count  or 
declaration;  so  that  the  defendant  must  wait  the  accidents  and 
events  of  trial,  and  until  the  plaintiff's  proofs  are  all  in,  before 
being  informed,  with  any  certainty  or  definiteness,  what  he  is 
called  upon  to  meet.  The  proposition  that  a  complaint,  or  any 
single  count  of  it,  may  be  so  framed  with  a  double,  treble,  or 
any  number  of  aspects,  looking  to  so  many  and  incongruous 
causes  of  action,  in  order  to  hit  the  exigencies  of  the  plaintiff's 
case  or  anj^  possible  demands  of  his  proof  at  the  trial  we  must 
say,  strikes  us  as  something  novel  in  the  rules  of  pleading." 


76  Actions.  [Chap.  1. 

Counsel  for  plaintiff  in  error  contends  that  his  complaint  may 
be  considered  one  in  trover  for  the  recovery  of  the  value  of  cer- 
tain timber  cut  from  the  plaintiff's  land.    He  admits  that  it  has 
"some  aspects"  of  a  complaint  in  trespass.     After  reading  the 
complaint,  we  are  convinced  that  that  admission  was  advisedly 
made.    It  not  only  has  some  of  the  aspects  of  such  a  complaint, 
but  the  very  likeness  of  such  pleading.    In  its  formal  allegations, 
it  is  almost  an  exact  reproduction  of  the  complaints  found  in  the 
form  books  for  injuries  to  real  estate  by  cutting  timber.    Abb. 
Forms  470.     It  has  all  the  attributes  of  a  complaint  for  tres- 
pass quare  clausum.     It  alleges  the  entry  upon  the  plaintiff's 
land,  the  cutting  of  the  timber,  the  carrying  of  the  same  away, 
and  conversion  to  the  use  of  the  defendant.    It  was  no  doubt  in- 
tended for  just  what  it  appears  on  its  face  to  be, — a  complaint 
for  unlawful  entry  and  cutting  of  plaintiff's  timber.     There 
was  an  absolute  failure  of  proof  in  this  regard.    No  proof  was 
offered  connecting  the  defendant  with  the  cutting  of  any  of  the 
timber,  or  with  any  entry  on  the  land.     But  it  is  said  that  a 
recovery  in  this  case  could  have  been  sustained  under  that  por- 
tion of  the  complaint  which  alleges  a  conversion  of  the  logs  by 
the   defendant.     The  allegation  that  defendant  converted  the 
logs  to  his  own  use  was  but  a  statement  of  damages  consequent 
to  the  illegal  entry  to  the  land.     A  very  similar  complaint  was 
considered  in  Merriman  v.  Machine  Co.,  86  Wis.  142,  (56  N.  W. 
743).     There  was  a  motion  to  make  the  complaint  more  definite 
and  certain,  on  the  grounds  that  it  alleged  trespass,  trover,  and 
conversion,   and   injury   to   business   credit.     The   court  said: 
"There  is  but  one  cause  of  action,  and  that  is  trespass  quare 
clausum  fregit,  and  the  other  continuous  acts  of  the  defendants 
are  stated  as  the  consequential  damages  arising  therefrom  and 
connected  therewith."     The  argument  of  the  counsel  that  the 
complaint  was  framed  to  meet  all  the  contingencies  of  the  proof 
is  evidently  an  afterthought.    The  counsel  is  too  well  versed  in 
the  law  to  make  that  suggestion,  except  as  a  last  resort.     The 
plan  of  "hitting  it  if  it  is  a  deer,  and  missing  it  if  it  is  a  calf," 
does  not  prevail  in  legal  proceedings.    "All  that  goes  to  the  ad- 
ministration of  justice  should  be  definite  and  certain.     This  is 
almost  equally  essential  to  the  claim,  the  defense,  and  the  judg- 
ment.   When  these  become  vague  and  loose,  the  administration 
of  justice  becomes  vague  and  loose,  with  a  tendency  to  rest,  not 
so  much  on  knoAvn  and  fixed  rules  of  law,  as  on  capricious  judg- 


Sec.  2.]  One  Form  of  Action.  77 

ment  of  the  peculiarities  of  each  case,  on  a  dangerous  and  ec- 
centric sense  of  justice,  largely  personal  to  the  judges,  varying 
as  cases  vary,  rather  than  on  abiding  principles  of  right,  con- 
trolling equally  the  judgments  of  courts  and  the  rights  of  suit- 
ors."   Pierce  v.  Gary,  37  Wis.  232. 

Again,  it  is  said  that  the  evidence  of  the  conversion  came  in 
without  objection  for  variance,  and  therefore  plaintiff  was  en- 
titled to  judgment.  The  difficulty  with  this  position  is  that 
such  evidence  was  proper,  under  the  complaint  to  show  conse- 
quential damages.  The  defendant  was  not  bound  to  anticipate 
that  there  was  to  be  a  failure  of  proof  of  the  substantial  mat- 
ters alleged  as  a  basis  of  the  cause  of  action.  When  the  plain- 
tiff's case  ended,  he  took  the  only  course  open  by  moving  for  a 
non-suit  for  failure  of  proof.  The  plaintiff  stood  upon  its  com- 
plaint as  being  one  for  conversion.  It  departed  entirely  from 
the  original  purpose  and  scope  of  the  action,  and  sought  to  make 
the  allegation  of  consequential  damage  stand  as  the  substance 
of  the  cause  of  action  alleged.  That  this  was  not  permissible 
seems  evident,  when  we  come  to  consider  that,  in  the  one  case, 
the  action  is  local,  and  triable  in  the  county  where  the  land  is 
situated ;  and,  in  the  other,  transitory  and  triable  in  the  county 
of  the  defendant's  domicile.  A  complaint  cannot  be  made  to 
serve  the  purpose  of  a  dragnet. 

It  is  further  suggested  that  the  action  can  be  supported  as 
one  under  section  4269,  Rev.  St.,  and  that  the  defendant  can  be 
made  liable  as  a  purchaser  of  the  logs  from  the  original  wrong- 
doer. That  section  refers  to  trespassers  and  purchasers  "with 
notice"  of  such  unlawful  cutting.  There  was  no  proof  that  the 
defendant  had  any  such  notice.  So  far  as  the  evidence  dis- 
closes, the  defendant  was  an  innocent  purchaser  of  the  logs 
without  notice,  and,  without  allegation  and  proof  connecting 
him  with  the  original  wrong  done,  the  action  cannot  be  sustained 
under  that  section.  See  Tuttle  v.  Wilson,  52  Wis.  643  (9  N. 
W.  822).  The  case  of  Swift  v.  James,  50  Wis.  541  (7  N.  W. 
656),  comes  the  nearest  to  sustaining  the  plaintiff's  contention 
of  any  in  the  books.  It  is  an  extreme  case,  and  must  be  limited 
to  the  facts  as  therein  disclosed.  The  complaint  alleged  an  un- 
lawful entry  upon  lands  in  ]\Iichigan,  the  cutting  of  timber,  the 
carrying  away,  and  a  conversion  of  the  same  in  the  cities  of 
Milwaukee  and  Chicago.  The  opinion  says  that,  while  the  com- 
plaint might  have  been  sustained  as  one  for  trespass  quare  clau- 


78  Actions.  [Chap.  I. 

sum,  if  the  action  had  been  brought  in  Michigan,' yet,  the  suit 
having  been  brought  in  this  state,  where  an  action  for  the  orig- 
inal trespass  could  not  be  maintained,  the  allegations  of  the  orig- 
inal trespass  might  be  treated  as  surplusage,  and  the  action  sus- 
tained here  for  conversion.  The  court  evidently  ignored  the 
principle,  recognized  in  Merriam  v.  Machine  Co.,  supra,  that  the 
allegation  of  conversion  was  merely  supplemental  to  the  trespass 
alleged,  and  inserted  to  allow  proof  of  the  consequent  damages. 
It  is  unnecessary  to  prolong  this  discussion.  We  feel  quite  clear 
that  the  cause  of  action  alleged  is  for  injury  done  to  real  estate 
and,  there  being  no  proof  connecting  the  defendant  therewith, 
the  non-suit  was  proper.  The  judgment  of  the  circuit  court  is 
affirmed.* 


BRUHEIM  V.  STRATTON. 

Supreme  Court  of  Wisconsin,  1911.     145  Wis.  271. 

Kerwin,  J.  The  complaint  in  this  action  stated  that  the 
plaintiff  was  the  owner  of  certain  lands  in  Minnesota,  and  that 
between  November,  1903,  and  March,  1904,  the  defendant  un- 
lawfully and  wrongfully  entered  upon  said  land  and  without 
authority  willfully  and  wrongfully  cut  standing  live  timber 
growing  thereon  and  willfully  and  wrongfully  took  and  carried 

4  See  "Wilson  v.  Haley  Live  Stock  and  the  Court  thought  that  even 
Co.,  153  TJ.  S.  39  (1893),  to  the  if  tliere  was  not  sufficient  posses- 
effect  that  under  the  Colorado  sion  to  support  the  charge  of  tres- 
code,  a  plaintiff  was  not  entitled  pass  to  laud,  there  still  might  be 
to  recover  for  money  paid  to  ob-  a  recovery  for  the  personal  tres- 
tain  the  release  of  certain  cattle,  pass.  Compare  Merriman  v.  Ma- 
under a  complaint  alleging  the  tak-  Cormick,  86  Wis.  142,  (1893),  post 
ing  of  the  cattle,  and  the  payment  p.  — . 

of    money    for    their    release,    etc.,  For  the  difficult  questions  which 

where    it    appeared    that    plaintiff  frequently  arose  in  actions  of  tres- 

was  not   entitled  to   possession   at  pass  at  common  law,  as  to  whether 

the    time    the    trespass    was    com-  certain      allegations      should      be 

mitted.     Compare  Bieri  v.  Fonger,  treated 'as   stating  matters   of   ag- 

139    Wis.    150,    (1909),    where    the  gravation  merely,  or  distinct  tres- 

complaint    alleged    a    trespass    to  passes,  see  Bush   v.   Parker,  Bing- 

land   and   an   assault   and   battery,  ham's  New  Cases,  73   (1834). 
apparently  by  way  of  aggravation, 


Sec.  2.]  One  Form  op  Action.  79 

the  same  away  and  converted  the  same  to  his  own  use,  to  the 
great  injury  and  damage  of  the  plaintiff,  and  further  alleged  the 
value  of  said  timber  converted  and  demanded  judgment  for  that 
amount  and  also  treble  said  amount  as  damages  under  the  Alin- 
nesota  statutes.  The  complaint  also  contains  allegations  setting 
up  the  statutes  of  Minnesota  respecting  willful  trespass  and 
single  and  treble  damages.  The  defendant  answered  admitting 
that  the  Minnesota  statutes  set  up  in  the  complaint  were  in  full 
force  and  effect  in  the  state  of  Minnesota  as  alleged  in  the  com- 
plaint, and  denied  every  other  allegation  of  the  complaint. 

The  court  below  sustained  an  objection  to  any  evidence  under 
the  complaint  for  the  reason  that  it  was  a  complaint  in  trespass 
upon  lands  in  Minnesota,  therefore  the  court  had  no  jurisdic- 
tion of  the  action,  and  denied  the  application  of  the  plaintiff 
to  amend  the  complaint  on  the  ground  that  it  had  no  power  or 
jurisdiction  to  allow  such  amendment  for  the  reason  that,  the 
cause  of  action  being  one  in  trespass,  the  complaint  could  not  be 
amended  so  as  to  set  up  a  cause  of  action  for  conversion  of  the 
timber  cut.  "We  think  the  court  below  erred  in  both  particulars. 
In  the  first  place,  there  were  sufficient  allegations  in  the  com- 
plaint to  make  a  good  cause  of  action  in  conversion,  and  what 
the  idea  of  the  pleader  was  when  he  drew  the  complaint  was 
immaterial.  If  the  allegations  were  sufficient  to  constitute  a 
cause  of  action  in  conversion,  the  plaintiff  was  entitled  to  have 
it  treated  as  such  by  the  coui't,  and  the  fact  that  the  court  had 
no  jurisdiction  of  the  action  of  trespass  upon  the  land  in  another 
state  rendered  the  allegations  respecting  a  cause  of  action  in 
trespass  merely  surplusage,  and,  there  being  sufficient  allega- 
tions aside  from  these  to  make  the  complaint  one  in  conversion, 
it  should  have  been  so  treated  by  the  court.  Swift  v.  James,  50 
Wis.  540,  7  N.  W.  656 ;  Bieri  v.  Fonger,  139  Wis.  150,  120  N.  W. 
862 ;  Morse  v.  Oilman,  16  Wis.  504 ;  Manning  v.  School  District, 
124  Wis.  84,  102  N.  W.  356 ;  Franey  v.  Warner  et  al.,  96  Wis. 
222,  71  N.  W.  81 ;  Emerson  et  al.  v.  Nash  et  al.,  124  Wis.  369, 
102  N.  W.  921,  70  L.  R.  A.  326,  109  Am.  St.  Rep.  944.  Doubt- 
less the  complaint  as  originally  drawn  would  have  been  subject 
to  a  motion  to  make  more  definite  and  certain  or  to  strike  out  the 
surplus  allegations;  but  no  such  motion  was  made,  and  de- 
fendant answered  on  the  merits.  Hagenah  et  al.  v.  Geffert,  73 
Wis.  636,  41  N.  W.  967 ;  Phillips  v.  Carver,  99  Wis.  561,  75  N.  W. 
432. 


so  Actions.  [Chap,  I. 

Respondent  relies  upon  Dessert  L.  Co.  v.  Wadleigh,  103  Wis. 
318,  79  N.  W.  237.  It  will  be  observed,  however,  that  was  au 
action  brought  for  trespass  upon  land  in  Wisconsin,  which  ac- 
tion the  court  had  jurisdiction  of.  Moreover,  the  strict  rule  laid 
down  there  has  not  been  followed  by  this  court.  In  Bieri  v. 
Fonger,  supra,  the  court  said,  at  page  155  of  139  Wis.,  at  page 
864  of  120  N.  W. :  "  In  the  light  of  the  very  liberal  rules  for 
testing  the  sufficiency  of  pleadings  and  proceedings  which  have 
been  declared  in  recent  years  and  the  progressive  tendency  to 
broaden  the  judicial  vision  as  to  the  scope  of  section  2829,  St. 
1898,  aforesaid,  the  criticism  in  Joseph  Dessert  L.  Co.  v.  Wad- 
leigh, supra,  would  hardly  be  made  to-day.  The  general  spirit 
of  the  decision  as  regards  essentiality  of  technical  accuracy  in 
pleadings  and  necessity  for  a  party  to  stand  or  fall,  under  all 
circumstances,  by  the  particular  cause  of  action  he  intended  to 
plead,  is  not  in  strict  harmony  with  the  later  day  expressions 
and  decisions." 

It  was  also  within  the  power  of  the  court  to  aUow  the  amend- 
ment which  plaintiff  asked,  setting  out  the  conversion  more  defi- 
nitely. The  cause  of  action  set  up  in  the  complaint  was  a  tort 
action,  whether  for  trespass  or  conversion,  and  the  power  of  the 
court  to  change  from  a  cause  of  action  in  trespass  to  one  in 
conversion,  we  think,  is  clear.  It  follows  that  the  court  erred 
in  sustaining  the  objection  to  any  evidence  under  the  complaint, 
and  also  in  refusing  the  amendment. 

The  judgment  below  is  reversed,  and  the  cause  remanded  for 
further  proceedings  according  to  law.^ 

Barnes,  J.  (dissenting).  The  main  purpose  of  a  complaint 
in  an  action  is  to  advise  the  defendant  of  the  nature  of  the 
cause  of  action  against  him.  In  an  action  for  trespass  for  cut- 
ting timber,  where  the  trespasser  reduces  the  logs  to  posses- 

6  In  Swift  V.  James,  50  Wis.  541,  in  another  state, 
and     McGonigle     v.    Atchison,    3.3  For  the  contrary  view,  that  even 

Kan.    726,    the    complaints    set    up  in  such  cases  the  complaint  should 

foreign  trespasses  and  the  conver-  be  construed  as  stating,  or  attempt- 

sion    of    things    severed    from    the  ing    to    state,    a    single    cause    of 

land,  but  did  not  rely  on  the  for-  action    for    trespass    to    land   with 

eign  statute.     See  also  Jacobus  v.  incidental    damages,   Ellenwood   v. 

Colgate,    217    N.    Y.    235,    (1916),  Marietta  Chair  Co.,  158  U.  S.  105, 

where    the    complaint    alleged    the  1894,    (under   Ohio    Code).      Dodge 

setting   fire   to   and   destruction   of  v.   Colby,    108    N.   Y.   445,    (1888). 
a   building    and   personal   property 


Sec.  2.]  One  Form  op  Action.  81 

sion  and  converts  the  same  to  his  own  use,  it  is  entirely  ap- 
propriate to  allege,  in  a  complaint  in  an  action  brought  to  re- 
cover damages  for  the  trespass,  that  the  trespasser  has  so  con- 
verted the  timber,  because  under  the  statute  (section  4269)  the 
plaintiff  is  entitled  to  recover  the  highest  market  value  of  the 
timber  cut  while  in  the  possession  of  the  trespasser.  These  al- 
legations relating  to  conversion,  which  form  the  basis  for  the 
enhanced  damages  which  plaintiff  expects  to  recover,  might  in 
themselves  set  forth  sufficient  facts  to  constitute  a  cause  of 
action  for  conversion.  But  in  an  action  for  conversion  the  alle- 
gations of  wrongful  entry  and  of  wrongful  cutting  are  entirelj' 
inappropriate.  A  defendant  is  entitled  to  know  whether  he  is 
being  charged  with  a  trespass  on  real  estate  or  with  a  conver- 
sion of  personal  property.  The  complaint  in  the  action  before 
us  could  not  be  made  the  subject  of  a  motion  to  make  it  more 
definite  and  certain  or  to  compel  the  plaintiff  to  elect  as  to 
which  of  two  causes  of  action  he  would  rely  upon,  because  it 
contained  the  necessary  averments  to  constitute  a  cause  of  action 
in  trespass  with  no  unnecessary  or  redundant  allegations  in  ref- 
erence to  such  a  cause.  The  original  complaint,  the  first 
amended  complaint,  and  the  proposed  amendments  to  the  first 
amended  complaint,  all  clearly  stated  a  cause  of  action  in  tres- 
pass. The  pleader  intended  to  set  forth  such  a  cause,  not  only 
because  a  cause  of  action  in  trespass  was  stated,  but  because 
plaintiff  claimed  the  benefit  of  a  statute  and  of  decisions  of 
Minnesota  applicable  to  actions  for  trespass  for  cutting  timber, 
by  which  his  damages  were  enhanced  largely  beyond  the  actual 
injury  sustained.  The  complaint  is  precisely  such  a  complaint 
as  this  court  held,  in  Joseph  Dessert  Co.  v.  Wadlcigh,  103  Wis. 
318,  79  N.  W.  237,  stated  a  cause  of  action  in  trespass  and  did 
not  state  a  cause  of  action  for  conversion,  and  it  is  just  such 
a  complaint  as  the  court  again  held,  in  Grunert  v.  Brown,  119 
Wis.  126,  95  N.  W.  959,  stated  a  cause  of  action  in  trespass  and 
did  not  state  a  cause  of  action  for  conversion.  Some  of  the 
discussion  in  the  Dessert  Co.  Case  was  not  approved  in  Bieri 
v.  Fonger,  139  Wis.  150,  120  N.  W.  862 ;  but  the  court  expressly 
stated  that  the  criticism  indulged  in  did  "not  impair  the  de- 
cision in  that  case,  but  only  softens  somewhat  the  logic  of  the 
discussion,"  See  further  Klipstein  v.  Raschein,  117  Wis.  248,  94 
N.  W.  63.  So  we  have  at  least  three  comparatively  late  causes 
decided  in  this  court  passing  upon  the  precise  point  involved 


82  Actions.  [Chap.  I, 

which  expressly  sustain  the  view  adopted  by  the  trial  judge, 
arid  none  to  the  contrary.  It  has  been  suggested  that,  because 
our  courts  could  not  grant  relief  for  a  trespass  committed  on 
lands  in  the  state  of  Minnesota,  the  complaint  should  have  been 
construed  as  intending  to  state  a  cause  of  action  in  conversion. 
This  argument  is  no  more  persuasive  than  a  like  argument  in 
Grunert  v.  Brown,  where  the  plaintiff  was  remediless  in  tres- 
pass because  the  right  of  action  was  barred  by  the  statute  of 
limitations;  whereas,  the  statute  had  not  run  on  a  cause  of 
action  for  conversion,  if  one  were  stated. 

The  trial  court  exercised  its  discretion  to  refuse  to  permit  an 
amendment  on  the  trial  changing  the  cause  of  action  from  tres- 
pass to  conversion.  At  the  time  the  amendment  was  sought  to 
be  made,  it  appeared  from  the  face  of  the  proposed  amended 
complaint  that  the  cause  of  action  for  conversion  was  barred  by 
the  statute  of  limitations,  although  such  was  not  the  case  when 
the  summons  was  served  in  the  trespass  action.  Under  these 
circumstances,  under  the  decisions  of  this  court  it  would  have 
been  error  to  permit  the  amendment.  Meinhausen  v.  Brewing 
Co.,  133  Wis.  95,  113  N.  W.  408,  13  L.  R.  A.  (N.  S.)  250; 
0 'Conner  v.  Railway  Co.,  92  Wis.  612,  66  N.  W.  795.  If  this 
were  not  so,  it  would  have  been  an  abuse  of  discretion  to  deny 
the  amendment.  Miller  v.  Kenosha  Electric  Co.,  135  Wis.  68, 
115  N.  W.  355,  and  cases  cited.  Section  2830,  St.  1898,  permits 
an  amendment  only  where  it  does  not  "change  substantially  the 
claim"  of  a  party.  As  I  understand  the  record,  the  trial  court 
did  not  hold  that  it  was  without  power  to  grant  the  amendment. 
It  held  that  its  jurisdiction  should  not  be  exercised  under  the 
facts  before  it. 


EMERY  V.  PEASE. 

Court  of  Appeals  of  New  York,  1859.    20  N.  T.  62. 

Appeal  from  the  Supreme  Court.  The  complaint  set  out  an 
agreement  between  the  plaintiff  and  defendant,  by  which  the 
former  was  acting  as  a  superintendent  of  a  manufactory  of  agri- 
cultural implements,  and  was  to  receive,  in  addition  to  a  fixed 
salary,  half  the  net  profits  of  the  business.     It  was  provided 


Sec.  2.]  One  Form  op  Action.  83 

that  the  net  profits  were  to  be  ascertained  by  deducting  from 
the  gross  receipts  various  enumerated  charges  and  expenses, 
and  all  losses  in  the  business,  including  bad  debts.  The  plaintiff 
was  to  keep  the  books,  and  at  the  end  of  each  year  an  accurate 
account  was  to  be  taken  of  the  stock  and  business  of  the  factory, 
the  net  profits  ascertained  and  the  plaintiff's  compensation  to 
be  paid  in  cash  or  the  defendant's  notes  at  six  months.  The 
plaintiff  averred  that  he  served  as  superintendent  one  year,  and 
at  the  end  thereof,  with  the  knowledge  and  assent  of  the  de- 
fendant, he  made  out  an  accurate  account  and  inventory  of  the 
stock  and  business,  and  stated  an  account  of  the  net  profits  of 
the  business  according  to  the  stipulations  of  the  agreement,  and 
delivered  the  said  statement  in  writing  to  the  defendant,  Feb- 
ruary 19,  1855,  to  which  he  made  no  objections,  and  now  (the 
complaint  was  verified  March  30,  1855)  has  the  same  in  his  pos- 
session. Breach,  that  defendant  refused  to  pay  half  the  net 
profits  stated  in  said  account,  which,  after  deducting  a  credit 
admitted  by  the  complaint,  amounted  to  $6,544.62,  for  which 
sum,  with  interest,  judgment  was  demanded. 

The  answer  averred  that  the  entire  balance  claimed  by  the 
plaintiff  consisted  in  uncollected  demands  for  goods  sold  dur- 
ing the  progress  of  the  business  upon  terms  of  credit,  which  in 
most  instances  had  not  expired,  and  insisted  that  the  defendant 
was  not  liable  to  pay  any  sum  for  net  profits  until  the  demands 
outstanding  were  collected,  and  the  losses  to  happen  from  bad 
debts  deducted  therefrom. 

On  the  trial  at  the  Albany  Circuit  before  Mr.  Justice  Gould, 
the  defendant  moved  to  dismiss  the  complaint  on  the  ground 
that  it  did  not  state  facts  sufficient  to  constitute  a  cause  of  ac- 
tion. The  judge  granted  the  motion,  holding  that  the  plaintiff 
should  have  brought  his  action  for  an  accounting.  The  plaintiff 
excepted,  and  the  judgment  against  hira  having  been  affirmed 
at  general  term  in  the  third  district,  appealed  to  this  court. 

CoMSTOCK,  J.  Regarding  the  suit  as  an  action  at  law  accord- 
ing to  the  distinction  between  legal  and  equitable  remedies 
which  formerly  prevailed,  we  think  the  Supreme  Court  were 
right  in  holding  that  it  could  not  be  maintained  upon  the  facts 
averred  in  the  complaint.  The  pleader  has  set  forth  some  mat- 
ters of  evidence  having  perhaps  a  slight  tendency  to  prove  that 
the  account  had  been  taken  and  the  balance  due  to  the  plaintiff 
ascertained  by  the  parties  according  to  the  principles  of  the 


84  Actions.  [Chap.  I. 

agreement  between  them.  But  he  seems  carefully  to  have 
avoided  the  very  conclusion  of  fact  which  alone  would  justify 
a  suit  for  the  recovery  of  an  ascertained  and  admitted  balance, 
to-wit,  that  the  parties  had  stated  the  account  and  that  the  state- 
ment thus  made  showed  there  was  due  to  the  plaintiff  the  sum 
which  he  claimed  to  recover.  The  avennent  that  the  plaintiff 
had  made  a  statement  and  delivered  it  to  the  defendant,  who 
made  no  objections  to  it,  does  not  necessarily  establish  the  re- 
quired conclusion  even  if  it  has  a  tendency  in  that  direction; 
and  consequently  we  cannot  hold  that  the  fact  of  an  account 
stated  between  these  parties  has  been  pleaded  in  any  manner  or 
form.  We  are  required,  and  we  are  always  inclined  to  give  a 
liberal  and  benign  construction  to  pleadings,  under  the  present 
system;  but  if  a  party  either  ignorantly  or  wilfully  will  omit 
the  very  fact  on  which  his  case  depends,  and  will  content  him- 
self with  averring  evidence  inconclusive  in  its  nature,  he  must 
take  the  consequences  of  his  error  if  objection  be  made  at  the 
proper  time. 

But  if  an  account  of  net  profits  has  not  been  taken  according 
to  the  rule  furnished  by  the  agreement,  it  seems  to  us,  upon  the 
facts  stated,  that  the  plaintiff  is  entitled  to  such  an  account^ 
and  then  to  recover  whatever  sum,  if  anj^thing,  shall  appear 
to  be  due  him.  This  is  probably  not  the  view  in  which  the 
suit  was  brought,  nor  is  it  in  accordance  with  the  prayer  of  the 
complaint.  But  relief  is  to  be  given  consistent  with  the  facts 
stated,  although  it  be  not  the  relief  specifically  demanded  (Code, 
§  275)  ;  and  in  determining  whether  an  action  will  lie,  the  courts 
are  to  have  no  regard  to  the  old  distinction  between  legal  and 
equitable  remedies.  Those  distinctions  are  expressly  abolished 
(Code,  §  69).  A  suit  does  not,  as  formerly,  fail  because  the 
plaintiff  has  made  a  mistake  as  to  the  form  of  the  remedy.  If 
the  case  which  he  states  entitles  him  to  any  remedy,  either  legal 
or  equitable,  his  complaint  is  not  to  be  dismissed  because  he  has 
prayed  for  a  judgment  to  which  he  is  not  entitled.  In  this  case 
the  plaintiff  was  to  be  paid  one-half  of  the  net  profits  of  a  cer- 
tain business,  to  be  ascertained  by  an  annual  accounting  in  a 

6  It  seems  questionable  whether  Eapp,  50  Mo.  52   (1872),  where  a 

this  complaint  was   any  better   on  very  similar  complaint  framed  for 

the  theory  of  an  accounting  than  an  accounting,  was  held    insufficient 

it    was    on    the    theory    of    an    ac-  for  that  purpose, 
count    stated;    See    MulhoUand    v. 


Sec.  2.]  One  Form  of  Action.  85 

particular  manner.  His  averments  are  too  feeble  to  show  that 
any  precise  sum  or  any  sum  at  all  is  due  to  him ;  but  we  think 
they  do  show  that  he  is  entitled  to  an  accounting  in  order  to 
ascertain  whether  anything  and  how  much  is  due.  That  being 
ascertained  by  appropriate  proceedings  in  the  action,  final  judg- 
ment will  be  given  accordingly. 

The  judgment  must  therefore  be  reversed  and  a  new  trial 
granted. 


BARLOW  V.  SCOTT. 
Court  of  Appeals  of  New  York,  1861.    24  N.  Y.  40. 

Appeal  from  the  Supreme  Court.  The  complaint  set  forth  a 
contract  for  the  conveyance  by  the  defendant  to  the  plaintiff  of 
forty  acres  of  land  by  a  good  warranty  deed.  It  averred  that 
the  defendant  had  tendered  a  deed  which  contained  only  a 
covenant  of  warranty  against  his  own  acts,  which  the  plaintiff 
refused  to  receive;  that  the  defendant  had  no  title  to  the  land, 
but  that  it  was  in  the  possession  of  a  third  person,  who  held  it 
adversely  under  a  valid  title.  It  prayed  for  a  specific  perform- 
ance of  the  contract,  or  for  damages.  The  defendant  denied  the 
contract  to  convey  with  general  covenant  of  warranty.  The 
trial  was  before  a  judge  without  a  jury.  The  case  did  not  show 
whether  this  was  by  consent,  nor  that  any  objection  was  taken 
to  that  mode  of  trial.  The  judge  found  the  facts,  and  the  same 
are  sufficiently  stated  in  the  following  opinion,  and  ordered 
judgment  for  the  plaintiff  for  $500  damages.  The  judgment 
having  been  reversed,  and  a  new  trial  granted  at  general  term 
in  the  sixth  district,  the  plaintiff  appealed  to  this  court. 

LoTT,  J.  *  *  *  These  considerations  lead  us  to  the  con- 
clusion that  the  defendant  was  bound  to  grant  and  convey  the 
premises  in  question  to  the  plaintiff  in  fee  by  a  good  warranty 
deed. 

This  conclusion  is  in  accordance  with  right  and  justice,  and 
is  sustained  in  principle  by  authority.  (Story  on  Contracts, 
§§  13  and  13a;  Wiswall  v.  Hall,  3  Paige,  318;  De  Peyster  v. 
Hasbrook,  1  Kern.  583,  590 ;  Alexander  v.  Vane,  1  Mees.  &  Wels. 
511.)     The  defendant  has  failed  and  refused  to  comply  with 


86  Actions.  [Chap.  1. 

that  obligation.  Not  only  is  the  deed  tendered  insufficient  in 
form,  but  it  also  is  found  that  at  the  time  it  was  tendered  the 
premises  were  in  the  possession  of  another  party;  and  that  the 
same  were  then,  and  since  have  been,  held  and  occupied  by  such 
party  under  deed  thereof,  and  claiming  title  thereto  adversely 
to  the  title  of  the  defendant  and  those  under  whom  he  claims. 
His  deed,  therefore,  would  be  void  as  against  the  party  claiming 
adversely,  and  would  not  confer  the  right  of  possession  or  any 
title  under  which  possession  could  be  recovered;  and  the  court 
properly  refused  to  give  judgment  directing  a  conveyance. 

It  is,  therefore,  a  case  where  the  plaintiff  is  entitled  to  dam- 
ages for  the  non-performance  of  the  agreement,  and  the  remain- 
ing question  to  be  considered  is  whether  they  are  recoverable 
in  this  action.  The  complaint  is  framed  for  the  specific  per- 
foiTaance  of  the  agreement,  and  in  default  thereof  for  compen- 
sation in  damages.  It,  after  setting  forth  the  terms  of  the  con- 
tract sought  to  be  enforced  alleges  that  the  plaintiff  has  no  valid 
title  or  interest  in  the  land  in  question,  and  that  the  same  is  in 
the  possession  of  another  party,  holding  the  same  under  a  good 
and  valid  title.  It  was  therefore,  a  case  where  the  facts  alleged 
were  not  sufficient  to  justify  a  decree  for  specific  performance, 
and  it  may  be  conceded,  as  stated  in  the  opinion  of  the  court 
below,  to  have  been  a  well  settled  rule  under  our  former  judicial 
system,  that  a  court  of  equity  where  such  relief  only  is  obtain- 
able, would  not  have  retained  the  suit  for  the  purpose  of  award- 
ing a  compensation  in  damages,  for  the  non-performance  of  the 
contract  to  convey;  for  the  reason  that  actions  for  damages  only 
were  properly  cognizable  in  courts  of  law,  in  which  a  perfect 
remedy  could  be  had.  Under  our  present  arrangement  the  same 
court  has  both  legal  and  equitable  jurisdiction,  and  if  the  facts 
stated  by  a  party  in  his  complaint  are  sufficient  to  entitle  him 
to  any  of  the  relief  asked,  and  an  answer  is  put  in  putting  these 
facts  in  issue,  it  would  be  erroneous  to  dismiss  the  complaint 
on  the  trial  merely  because  improper  relief  if  primarily  de- 
manded. It  is  competent  for  the  court,  under  such  circum- 
stances, to  grant  any  relief  consistent  with  the  case  made  by 
the  complaint  and  embraced  within  the  issue  (section  275  of 
the  code)  and  the  statement  of  the  right  of  the  plaintiff  and  its 
infringement  by  defendant  constitute  such  case  as  stated  by 
Johnson,  J.,  in  Marquat  v.  Marquat  (2  Kern  333,  341)  ;  Phillips 
V.  Gorham,  (17  N.  Y.  270)  ;  Truscott  v.  King,  (2  Seld.  165)  j 


Sec   2.] 


One  Form  of  Action. 


87 


Wiswall  V.  Hall,  (3  Paige  314)  ;  LeRoy  v.  Piatt,  (4  id.  77)  ;  The 
New  York  Insurance  Company  v.  North  Western  Gas  Company, 
(21  How.  Pr.  296,  298).  These  are  the  only  questions  properly 
presented  on  the  appeal. 

It  is,  however,  insisted  by  the  defendant,  that  it  was  erroneous 
for  the  court  to  order  judgment  for  the  plaintiff  on  a  trial  of 
an  issue  without  a  jury.  There  is  nothing  in  the  case  to  show 
that  the  action  was  so  tried  against  or  without  the  defendant's 
consent.''^  The  objection  does  not  appear  to  have  been  made  at 
the  trial,  and  if  it  was,  the  fact  should  have  been  stated  in  the 
case,  and  not  appearing  there  it  cannot  be  urged  in  this  court 
as  a  ground  for  reversing  the  judgment.  (Greason  v.  Kreteltas, 
17  N.  Y.  491.) 

The  result  of  these  views  is  that  the  judgment  of  the  general 
term  should  be  reversed  and  that  of  the  special  term  affirmed 
with  costs,  in  the  supreme  court,  but  without  costs  to  either 
party  on  this  appeal. 

Judgment  at  general  term  reversed,  and  that  at  special  term 
affirmed.^ 


7  "A  party  may  waive  his  right 
to  the  trial  of  the  issue  of  fact, 
by  a  jury,  in  any  of  the  follow- 
ing   modes: 

1.  By  failing  to  appear  at  the 
trial. 

2.  By  filing  with  the  clerk  a 
written  waiver,  signed  by  the  at- 
torney for  the  party. 

3.  By  an  oral  consent  in  open 
court,  entered  in  the  minutes. 

4.  By  moving  the  trial  of  the 
action,  without  a  jury;  or,  if  the 
adverse  party  so  moves  it,  by  fail- 
ing to  claim  a  trial  by  a  jury, 
before  the  production  of  any  evi- 
dence   upon    the    trial."      N.    Y. 


Code,    Civ.  Proc.    §    1009. 

8  And  so  in  White  v.  Lyons,  42 
Cal.  279  (1871),  where  a  complaint 
framed  for  an  accounting  and 
other  equitable  relief,  and  insuffi- 
cient for  that  purpose,  was  sus- 
tained as  stating  a  case  at  law. 

But  see  Denner  v.  Ey.,  57  Wis. 
218  (1883),  where  the  court  re- 
fused to  sustain  an  insufficient 
complaint  for  an  injunction  as  an 
action  at  law  for  damages.  At 
this  period  and  somewhat  later  the 
Supreme  Court  of  Wisconsin  took 
a  strict  view  of  pleading.  Super- 
visors V.  Decker,  30  Wis.  624. 


88  Actions.  [Chap.  I. 

NEW  YORK  ICE  CO.  v.  NORTHWESTERN  INSURANCE 

CO. 

Court  of  Appeals  of  New  York,  1861.    23  N.  Y.  357. 

CoMSTOCK,  Ch.  J.  The  object  of  the  suit  was  to  recover  the 
sum  of  $4,000,  in  which  the  defendant,  by  a  fire  policy,  insured 
the  plaintiffs.  In  the  complaint  it  was  stated  that  a  certain 
clause  in  the  policy  descriptive  of  the  subject  of  insurance  was 
inserted  by  mistake,  and  that  the  defendants,  taking  advantage 
of  that  clause,  had  refused  to  pay  the  loss.  The  prayer  of  the 
complaint  was  for  the  recovery  of  the  $4,000 ;  and,  if  necessary, 
that  the  contract  be  reformed  by  striking  out  the  clause  in 
question.  The  case  was  tried  before  Mr.  Justice  Ingraham,  who 
dismissed  the  complaint.  The  decision  proceeded  solely  on  the 
ground  that  the  plaintiffs  had  not  made  out  a  right  to  have 
the  contract  reformed ;  but  no  determination  was  made  that  the 
plaintiffs  were  not  entitled  to  recover  on  the  policy  as  it  actually 
was.  The  learned  Justice  was  of  the  opinion  that  such  a  re- 
covery could  not  be  had  without  instituting  a  new  suit,  and  the 
judgment  was  accordingly  without  prejudice  to  the  right  of 
bringing  another  action.  But  the  plaintiffs  afterwards  ascer- 
tained that,  by  a  provision  in  the  policy,  actions  must  be  brought 
within  twelve  months  after  a  loss,  and  that  it  was  too  late  to 
begin  de  novo.  They  then  moved  the  special  term  to  amend  the 
order  of  dismissal,  by  inserting  leave  to  file  a  complaint  "at 
law"^  in  the  same  action,  and  an  order  granting  such  leave  was 
made.  From  this  order  the  defendants  appealed  to  the  general 
term,  where  the  same  was  reversed,  and  from  the  order  of 
reversal  the  plaintiffs  appealed  to  this  court.  The  defendants 
move  to  dismiss  this  appeal. 

I  confess  myself  unable  to  see  why  the  plaintiffs  were  not 
entitled  to  a  reformation  of  the  contract.  The  learned  justice 
who  tried  the  case,  in  the  opinion  given  by  him,  after  referring 
to  the  evidence,  observes:  "The  only  conclusion  I  can  adopt 
on  this  evidence  is  that  there  was  a  mutual  mistake  as  to  the 
description  of  the  premises  arising  from  a  misunderstanding 
of  the  parties  in  the  original  negotiation  of  the  contract,  and 

9  See  Friedrichsen  v.  Eenard,  an  amendment  was  allowed  to 
247   U.   S.  207    (1917),  where  such       avoid  the  statute  of  limitations. 


Sec.  2.]  One  Form  op  Action.  89 

that  the  defendants'  agent  in  making  the  policy  made  it  as  he 
intended  it  should  be  when  he  agreed  to  insure  the  property. 
The  policy  was  made  according  to  his  description  entered  by 
him  in  the  books  of  the  company, ' '  etc.  Now,  if  the  misdescrip- 
tion of  the  subject  of  insurance  was  material,  and  was  entered 
in  the  books  of  the  company,  and  found  its  way  into  the  policy 
in  consequence  of  a  mutual  mistake  or  misunderstanding  of  the 
parties,  it  seems  to  me  that  a  proper  case  was  made  out  for  a 
reformation  of  the  contract. 

In  the  next  place,  I  am  of  opinion  that  it  was  erroneous  to 
turn  the  plaintiff  out  of  court  on  the  mere  ground  that  he  had 
not  entitled  himself  to  the  equitable  relief  demanded,  if  there 
was  enough  left  of  his  case  to  entitle  him  to  recover  the  sum  in 
which  he  was  insured.^"  No  suggestion  was  made  that  the  com- 
plaint did  not  show  a  good  cause  of  action  for  this  monej^,  even 
after  striking  out  all  the  allegations  and  the  prayer  on  the  sub- 
ject of  equitable  relief.  But  because  it  contained  those  allega- 
tions, and  because  those  were  tried  without  a  jury  and  tried 
unsuccessfully,  the  court  refused  to  entertain  the  ease  for  the 
relief  to  which  the  plaintiff  was  in  fact  entitled,  that  is  to  say, 
for  the  recovery  of  the  money  without  reforming  the  contract. 
This  ruling  proceeded  wholly  on  the  authority  of  the  case  of 
Reubens  v.  Joel  in  this  court  (3  Kern.  488),  which,  it  is  inti- 
mated, was  a  departure  from  previous  cases  also  in  this  court. 
But  this  is  a  mistake.  In  that  case  a  debtor  had  made,  as  it  was 
alleged,  a  fraudulent  assignment  of  his  property ;  and  a  creditor, 
by  simple  contract,  commenced  a  suit  against  the  assignor  and 
assignee  praying  a  recovery  of  his  debt,  and  for  an  injunction 
to  restrain  the  alienation  of  the  property  assigned.  The  ques- 
tion in  the  case  arose  on  demurrer,  put  in  by  the  assignee,  and 
the  point  determined  in  this  court  was,  that  such  a  creditor  was 
not  entitled  in  such  a  case  to  equitable  relief  by  injunction.  We 
all  thought  that  the  creditor  had  no  standing  in  court,  legal  or 
equitable,  as  against  the  assignee,  until  after  judgment  against 
his  debtor,  and  whatever  was  said  beyond  this  is  to  be  taken 
as  individual  opinion  merely.  The  doctrine  of  the  previous 
cases  (2  Kern.  266;  id.  336),  favorable  to  uniting  in  the  same 

10  As    to    whether    such    a    com-  Y.  143,  (1901),  ante  p.  35;  Kabrich 

plaint  should  be  regarded  as  stat-  v.  State  Ins.  Co.,  48  Mo.  App.  393, 

ing  two  causes  of  action,  see  Imp.  ante   p.   31, 
Shale  Brick  Co.  v.  Jewett,  169  N. 


90  Actions.  [Chap.  I. 

action  legal  and  equitable  grounds  of  relief,*  was  not  intended 
to  be  disturbed ;  and  a  case  in  this  court  of  a  later  date  has  re- 
affirmed that  doctrine  in  the  most  explicit  manner.  (Phillips 
V.  Gorman,  17  N.  Y.  270.)  In  this  ease  the  point  was  very  dis- 
tinctly presented,  and  it  was  decided  upon  the  fullest  considera- 
tion. I  tliink  it  proper  to  mention  that  the  reason  why  I  ex- 
pressed no  opinion  in  the  case  was,  that  I  hesitated  in  regard  to 
the  power  of  the  legislature  under  the  Constitution  to  abrogate 
all  the  distinctions  between  legal  and  equitable  actions.  That 
such  was  the  expressed  intention  of  the  legislature  in  the  Code 
of  Procedure,  I  never  had  any  doubt.  Both  of  these  questions 
must  now  be  considered  at  rest. 

And  in  the  next  place,  I  do  not  see  the  grounds  upon  which 
the  court  below,  in  general  term,  reversed  the  order  of  the 
special  term,  giving  to  the  plaintiff  the  right  to  put  in  a  new  or 
amended  complaint  in  the  action.  I  think  the  complaint  was 
perfectly  good,  and  that  no  amendment  or  substitution  was 
necessary.  It  was  much  more  clearly  good  in  the  so-called  legal 
than  in  the  so-called  equitable  aspect  of  the  case.  Nevertheless, 
the  court  corrected  the  judgment  by  adding  the  words,  "or  the 

1  Compare   Bartlett,   J.,   in   Loeb  to  be  sent  to  the  law  side  of  the 

V.  Supreme  Lodge,  198  N.  Y.   180,  court   for   trial,   but   insisted   upon 

(1909):      *     »      »     "After  the  de-  their  right  to  judgment  after  trial 

fendant    rested    its    case,    counsel  on     the     equity     side     before     the 

moved    to    dismiss    the    complaint  court  without  a  jury.     Under  these 

upon    the     ground     briefly    stated  circumstances  it  seems  to  me  plain 

that    the    course    of   the    trial    dis-  that    the    plaintiffs,    having    failed 

closed  that  the  action  should  have  to     establish     a     cause    in     equity 

been  tried   on  the  law  side  of  the  should  suffer  a  dismissal  for  their 

court.      The    trial    judge    reserved  complaint." 

Ms    decision    on   this    motion.      In  "In   so   holding   the   trial   judge 

an     opinion     submitted     later     the  was   clearly  right   under   authority 

trial    judge    stated,    among    other  of   Bradley   v.   Aldrich    (40    N.   Y. 

things,    as    follows:      "The    cause  504).    *    *     *    It  would  seem  that 

was  placed  upon  the  equity  calen-  no    other    course    was    left    to    the 

der,  and  upon  the  trial  the  defend-  trial  judge  but  to  dismiss  the  com- 

ant  made  the  point  that  the  plain-  plaint.     If  the  plaintiffs  saw  fit  to 

tiffs    had    failed    to    establish    by  stand    on    their    original    position, 

proof  any  ground  for  equitable  re-  that    the    action    on    this    benefit 

lief    and    that,    having    abandoned  certificate     presented     issues     that 

that   part    of   the    complaint,   they  were   triable   in  equity,  they  were 

should  be  remitted  to  their  action  entitled   to   test    the    soundness   of 

at  law.  The  plaintiffs  did  not  that  proposition  on  appeal."  *  *  * 
acquiesce  in  this  position  and  ask 


Sec.  2.]  One  Form  of  Action,  91 

plaintiff  may  serve  a  new  complaint  at  law  in  this  action  on 
payment,"  etc.  *  ♦  *  The  amendment  simply  gave  leave, 
in  the  plaintiff's  election,  to  go  on  in  the  same  action  after  re- 
forming his  complaint.  In  all  this  I  see  nothing  but  practice  and 
discretion  which  afforded  no  ground  for  review. 

But  the  inquiry  remains  whether  the  order  of  reversal,  pro- 
nounced at  the  general  term,  can  be  reviewed  in  this  court.  We 
regret  to  find  that  there  is  no  provision  of  law  which  authorizes 
such  an  appeal.  The  order  appealed  from  does  not,  we  think, 
''in  effect  determine  the  action  and  prevent  a  judgment  from 
which  an  appeal  might  be  taken."  (Code,  §  11,  sub.  2.)  On  the 
contrary,  it  leaves  in  force  a  judgment  in  the  action  rendered 
upon  the  trial,  from  which  an  appeal  might  be  taken,  and,  so  far 
as  we  know,  may  still  be  taken.  The  case,  therefore,  does  not 
seem  to  be  embraced  in  any  of  the  subdivisions  of  the  11th  sec- 
tion of  the  Code,  which  is  the  only  authority  for  appeals  to  this 
court.  The  appeal  must,  therefore,  be  dismissed,  but  without 
costs. 

Appeal  dismissed. 


RUSH  V.  BROWN. 
Supreme  Court  of  Missouri,  1890.    101  Mo.  586. 

This  is  an  appeal  from  the  decision  of  the  circuit  court  of 
Buchannon  county,  sustaining  defendant's  demurrer  to  plain- 
tiff's amended  petition  for  specific  performance  of  an  agree- 
ment to  convey  the  real  property  of  the  respondent,  Mary  L. 
Brown,  a  married  woman,  held  as  her  legal  (not  statutory  or 
separate)  estate.    Defendants  are  husband  and  wife. 

The  material  facts  on  which  relief  is  asked  in  the  petition  are 
these :  That  before  the  25th  day  of  February,  A.  D.  1887,  the 
defendants,  and  each  of  them  jointly  and  in  the  presence  of 
each  other,  made,  constituted  and  appointed,  and  by  their  dec- 
laration, by  parol,  lawfully  authorized  one  Owen,  as  their  agent, 
to  sell  for  them  the  parcel  of  land  in  controversy,  upon  certain 
terms,  for  the  price  of  twelve  thousand  dollars ;  that  on  the  25th 
of  February,  1887,  and  while  such  agency  was  still  in  full  force, 
said  Owen,  in  the  name  of,  and  as  such  agent  for,  said  defend- 


92  Actions.  [Chap.  I. 

ants,  sold  said  real  estate  to  plaintiffs,  upon  the  terms  aforesaid, 
and  plaintiff  paid  defendant's  said  agent  the  sum  of  three 
thousand  dollars,  and  otherwise  complied  with  the  terms  of 
sale;  that  at  the  time  of  the  payment  of  said  three  thousand 
dollars,  the  said  Owen,  as  the  agent  of  said  defendants,  de- 
livered to  plaintiff  a  certain  memorandum  in  A\Titing,  whereb.y 
the  defendants  acknowledged  the  receipt  of  said  sum  of  three 
thousand  dollars,  and  declared  that  the  same  constituted  the 
cash  payment  of  the  purchase  price  of  the  said  real  estate  that 
day  sold  plaintiff,  etc.,  to  which  memorandum  the  names  of 
the  defendants  were  signed  by  said  Owen,  as  aforesaid,  their 
agent  (which  memorandum  was  filed)  ;  that,  after  such  payment 
of  three  thousand  dollars,  the  defendants,  and  each  of  them, 
after  being  informed  of  the  payment  thereof,  and  the  making 
and  the  signing  of  said  memorandum,  each,  and  jointly  by  parol, 
ratified  and  affirmed  the  same,  yet  the  defendants,  and  each  of 
them,  ever  since  have  and  now  refuse  to  convey  the  same  to 
plaintiff  by  deed  in  proper  form. 

"Wherefore  the  plaintiff  prays  that  defendants  be  ordered 
by  this  court  to  make,  execute  and  deliver  to  plaintiff  their  deed 
in  common  form  with  usual  covenants  of  warranty  conveying 
to  plaintiff  the  real  estate  aforesaid,  as  by  their  said  note  and 
memorandum  herewith  filed,  they  are  bound  to  do,  and  that 
plaintiff  further  recover  his  costs  in  this  cause  laid  out  and  ex- 
pended, and  for  all  and  such  other  relief  as  should  be  granted 
in  the  premises." 

Bakclay,  J.  Under  our  statutes  and  the  uniform  construc- 
tion of  them  that  has  for  many  years  prevailed,  a  married 
woman  cannot  be  compelled  to  specifically  perform  a  contract 
for  the  sale  of  her  legal  estate  in  land.  R.  S.  1889,  sects.  2396 
and  2397 ;  Shroyer  v.  Nickell,  55  Mo.  264. 

So  v/ell  established  is  this  rule,  that  we  are  disposed  to  stop 
with  the  briefest  announcement  of  it  rather  than  to  hazard 
obscuring  it  by  elaboration. 

The  prayer  of  the  petition  here  is  for  specific  performance 
and  general  relief.  A  general  demurrer  to  the  petition  having 
been  sustained  and  the  case  brought  here  in  that  shape,  the 
question  arises,  can  plaintiff  obtain  a  reversal  because  the  trial 
court  did  not  enter  judgment  against  one  of  the  defendants 
(the  husband)  for  the  amount  of  the  purchase  money  paid  as 
alleged?     No  prayer  for  such  a  recovery  is  contained  in  the 


Sec.  2.]  One  Form  of  Action.  93 

petition.  That  is  evidently  framed  with  a  view  to  such  relief 
as  formerly  could  have  been  given  only  by  a  court  of  chancery 
as  distinguished  from  a  court  of  law. 

But  it  seems  to  be  imagined  that  any  kind  of  judgment 
(whether  legal  or  equitable  in  nature),  that  any  particular  facts 
alleged  may  warrant,  should  be  given,  under  our  code  of  pro- 
cedure, in  such  a  case,  whether  asked  or  not.  "We  do  not  assent 
to  that  view. 

One  of  the  purposes  of  the  code  is  to  substitute  specific  and 
concise  statements  of  the  actual  facts  of  each  controversy  for 
the  more  general  declarations  of  demands  formerly  in  use  in 
courts  of  law,  and  the  unnecessary  prolix  and  elaborate  plead- 
ings in  chancery.  The  object  in  view  is  to  have  the  defendant 
fully  advised  in  each  case  of  the  precise  complaint  he  is  called 
upon  to  meet. 

In  harmony  with  this  object,  it  is  provided  that  the  petition 
shall  contain  (among  other  things)  "a  demand  for  the  relief  to 
which  the  plaintiff  may  suppose  himself  entitled,"  and  that, 
"if  the  recovery  of  money  be  demanded,  the  amount  thereof 
shall  be  stated,  or  such  facts  as  will  enable  the  defendant  and 
the  court  to  ascertain  the  amount  demanded."  R.  S.  1889,  sec. 
2039. 

It  is  obvious  that,  upon  many  states  of  facts  presented  to  a 
court  for  action,  divers  remedies  may  be  applicable,  some  strict- 
ly legal,  others,  perhaps,  equitable  in  nature.  It  would  be  a  de- 
parture from  the  true  spirit  and  meaning  of  the  code  to  require 
of  plaintiff  "a  plain  and  concise  statement  of  the  facts  con- 
stituting his  cause  of  action"  without  requiring  (at  some  stage 
of  the  case)  a  plain  statement  of  the  judicial  action  demanded 
thereon,  for  the  information  of  the  defendant  and  of  the  court. 

This  is  especially  true  where,  as  in  Missouri,  by  the  terms  of 
the  constitution  (Const.  1875,  art.  2,  sec.  28),  the  right  of  trial 
by  jury  is  preserved  inviolable  in  ordinary  cases  "for  the  re- 
covery of  money  onh',  or  of  specific  real  or  personal  property" 
(Revised  Statutes,  1889,  sec.  2131),  usually  termed  actions  at 
law,  whereas  suits  formerly  cognizable  in  chancery  may  be  prop- 
erly tried  without  a  jury. 

"With  us  it  is,  therefore,  often  of  importance  to  all  concerned 
to  know  what  relief  plaintiff  demands,  in  order  to  determine 
the  proper  constitutional  mode  of  trial.  On  this  account,  it  is 
sometimes  necessary,  in  the  practical  administration  of  justice, 


94  Actions.  [Chap.  I. 

to  recur  to  the  inherent  distinctions  between  legal  and  equitable 
rights  and  remedies,  and  to  insist  that  parties  asking  aid  of  the 
court  state  the  nature  of  the  relief  desired,  as  well  as  the  facts 
on  which  they  demand  it. 

It  is  the  duty  of  all  courts  to  so  construe  the  code  as  "to 
secure  parties  from  being  misled."  R.  S.  1889,  sec. '2117.  But 
it  is  obvious  that  parties  would  often  be  misled  as  to  the  real 
nature  and  issues  of  the  case  if  an  ordinary  judgment  at  law 
might  be  rendered  by  the  court  on  a  petition  praying  only 
equitable  relief,  without  other  notice  of  such  legal  demand  than 
the  supposed  case  in  equity  incidentally  disclosed. 

The  code,  no  doubt,  intended  to  abolish  many  distinctions 
with  respect  to  forms  of  statement,  between  actions  at  law  and 
suits  in  equity,  and  to  empower  the  same  court  (if  necessary  in 
the  same  proceeding)  to  adjudicate  legal  and  equitable  rights 
and  apply  thereto  legal  and  equitable  remedies,  but  it  does  not 
sanction,  and  should  not  be  so  interpreted  as  to  encourage  such 
vagueness  and  uncertainty  in  the  petition  as  would  leave  the 
adverse  party  and  the  court  in  doubt  as  to  the  relief  demanded, 
and  hence  as  to  the  mode  of  the  trial,  and  as  to  the  issues  which 
would  be  material  and  decisive  in  it.  Humphreys  v.  Milling 
Co.  (1889),  98  Mo.  542. 

Moreover,  we  review  in  this  court  only  such  objections  to 
proceedings  as  have  been  expressly  decided  by  the  trial  court. 
R.  S.  1889,  sec.  2302. 

Parties  who  wish  to  change  or  enlarge  their  demand  for  re- 
lief should  do  so  by  amendment  or  otherwise  while  the  cause  is 
before  the  trial  court,  at  least  in  those  instances  where  the  case 
goes  off  upon  demurrer,  for  the  general  provision  permitting 
the  court  to  grant  "any  relief  consistent  with  the  case  made 
by  the  plaintiff  and  embraced  within  the  issues,"  (R.  S.  1889, 
sec.  2216)  can  have  no  proper  application  where  iSnal  judgment 
for  defendant  has  been  reached  on  demurrer.  In  that  event 
the  prayer  for  general  relief,  supplemental  to  one  for  specific 
performance,  cannot,  in  view  of  section  2039  (R.  S.  1889),  be 
construed  as  a  prayer  for  a  money  judgment. 

The  judgment  of  the  trial  court  was  correct  and  is  affirmed, 
with  the  concurrence  of  all  the  members  of  the  court. 


Sec.  2.]  One  Form  op  Action.  95 

CADDELL  V.  ALLEN. 

Supreme  Court  of  North  Carolina,  1888.    99  N.  C.  542. 

In  the  course  of  the  trial  of  this  action,  the  plaintiff,  the  de- 
fendant objecting,  was  allowed  to  put  in  evidence  a  paper  writ-, 
ing  purporting  to  be  a  power  of  attorney  from  Stephen  Lacey 
and  Thomas  Lacey  to  David  Cuthbertson,  empowering  the  latter 
to  sell  and  convey  the  title  to  the  lands  therein  mentioned  and 
described.  This  paper  writing  concluded  as  follows :  "In  wit- 
ness whereof,  we,  the  said  Stephen  and  Thomas  Lacey,  have 
hereunto  set  our  hands  and  seals,  October  26th  day,  1816." 
(Signed)  Stephen  Lacey,  Thomas  Lacey.  But  no  seal,  nor  any 
mark  or  scroll  purporting  to  be  a  seal,  is  affixed  to  or  set  op- 
posite these  signatures,  or  elsewhere  in  the  writing.  The  plain- 
tiff, likewise  the  defendant  objecting,  was  allowed  to  put  in  evi- 
dence a  deed  from  David  Cuthbertson,  attorney,  which  purported 
to  convey  the  title  to  the  lands  therein  mentioned  and  described, 
of  Stephen  Lacey,  one  of  the  parties  signing  and  making  the 
power  of  attorney,  to  Aaron  Stegall.  The  following  is  a  copy 
of  so  much  of  this  deed  as  need  be  set  forth  here :  ' '  This  in- 
denture, made  this  23d  of  Feb.,  1828,  between  D.  Cuthbertson, 
of  the  State  of  North  Carolina,  and  County  of  Anson,  attorney 
for  Stephen  Lacey,  of  the  one  part,  and  Aaron  Stegall  of  the 
state  and  county  aforesaid,  of  the  other  part,  witnesseth,  that, 
for  and  in  consideration  of  one  hundred  and  fifty  dollars  to 
him  in  hand  paid  by  the  said  Stegall,  the  receipt  whereof  is 
hereby  acknowledged,  hath  granted,  bargained,  and  sold,  four 
certain  tracts  of  land  lying,"  etc.  (describing  them),  "and  the 
said  D.  Cuthbertson,  in  the  name  and  by  virtue  of  his  power 
of  attorney  from  the  said  Stephen  Lacey,  warrants  and  forever 
defends  the  said  tracts,  containing  six  hundred  acres  of  land, 
and  premises,  free  and  clear  of  all  manner  of  incumbrances,  to 
the  said  Stegall,  his  heirs  and  assigns,  forever,  in  as  full  and 
ample  a  manner  as  the  most  learned  in  the  law  can  devise.  In 
witness  whereof,  the  said  D.  Cuthbertson,  attorney  as  aforesaid, 
doth  hereunto  assign  this  instrument,  and  seal  the  same. 
(Signed)  D.  Cuthbertson,  Attorney  for  Stephen  Lacey. 
(Seal.)"  The  defendant,  among  other  things,  requested  the 
court  to  charge  as  follows:  (1)  That  the  power  of  attorney 
from  Stephen  and  Thomas  Lacey  to  D.  Cuthbertson  is  void  for 


96  Actions.  [Chap.  I. 

uncertainty  in  the  description  of  the  land  which  the  said  D. 
Cuthbertson  is  authorized  to  sell  and  convey;  that  the  said 
power  does  not  authorize  the  said  Cuthbertson  to  convey  the 
land  said  to  be  embraced  in  the  Lacey  grant.  (2)  That  the  deed 
from  D.  Cuthbertson,  the  alleged  attorney  and  agent  of  the  said 
Stephen  and  Thomas  Lacey,  passes  no  title  to  the  land  therein 
attempted  to  be  conveyed ;  the  conveyance  being  in  the  name  of 
Cuthbertson,  and  not  in  that  of  the  said  Lacey.  *  *  *  There 
was  a  verdict  and  judgment  for  the  plaintiff,  and  the  defendant 
appealed  to  this  court. 

Merrimon,  J.  It  is  the  settled  law  of  this  state,  that  an  agent 
or  attorney  in  fact  cannot  execute  a  deed  of  conveyance  of  land, 
binding  upon  his  principal,  unless  he  be  authorized  thereunto 
by  a  power  of  attorney  under  seal.  The  ancient  rule  of  law  in 
this  respect  has  not  been  modified  or  trenched  upon  by  this 
court,  and  we  are  not  at  liberty  or  inclined  to  so  do  now.  If 
the  hurry  and  convenience  of  business  transactions  in  the  pres- 
ent state  of  society  require  easier  and  less  solemn  methods  of 
conveyance  of  land  than  formerly,  it  is  the  province  of  the  leg- 
islature, and  not  that  of  courts,  to  modify  and  change  settled 
i-ules  of  law  to  that  end.     *    *    * 

But,  if  the  power  of  attorney  were  sufficient,  the  deed  in  ques- 
tion was  not  executed  in  pursuance  and  in  the  proper  exercise 
of  the  power.  It  everywhere,  in  the  body  of  it,  purported  in 
terms  to  be  that  of  "D.  Cuthbertson,  ♦  *  *  attorney  of 
Stephen  Lacey,"  etc.  He,  not  his  principal,  purported  to  con- 
vey title ;  and,  as  a  consequence,  no  title  passed,  for  he  had  none 
to  convey.  The  deed  should,  by  its  effective  terms  of  convey- 
ance, be  and  purport  to  be  that  of  principal,  executed  by  his 
attorney,  and  to  convey  the  estate  of  the  principal.  It  is  not 
sufficie/it  that  the  attorney  intended  to  convey  his  principal's 
estate ;  he  must  have  done  so  by  apt  words,  however  informally 
expressed  to  effectuate  that  purpose.  The  distinct  purpose  of 
the  principal  to  convey,  and  the  necessary  form  and  operative 
vvords  to  convey  his  estate,  must  appear  in  the  body  of  the  deed 
in  all  essential  connections.  His  name  should  be  signed,  and 
purport  to  be  signed,  and  his  seal  affixed  by  the  attorney;  but 
the  signing  will  be  sufficient,  if  it  be  by  the  attorney  for  the 
principal.  *  *  *  So  that  the  power  of  attorney  and  the  deed 
were  both  insufficient;  and  the  court  should  have  rejected  them 
when  objected  to  in  the  course  of  the  trial,  and,  failing  in  this, 


Sec.  2.]  One  Form  of  Action.  97 

it  should  have  given  the  special  instructions  asked  for  in  such 
respect  to  the  jury. 

It  was  suggested  that  the  court  could  see,  upon  the  face  of 
them,  the  purpose  of  the  power  of  attorney  and  the  deed  to 
convey  the  title  to  the  principal,  and  they  should  receive  such 
interpretation  as  will  effectuate  the  purpose.  Courts  will  inter- 
pret pertinent  words  and  phraseology  in  deeds  and  like  instru- 
ments in  such  way  as  to  effectuate  the  intention  of  the  makers 
thereof,  appearing  from  the  whole  instrument,  when  this  can 
reasonably  be  done;  but  there  must  be  proper,  pertinent  and 
necessary  words  and  phraseology  in  them  to  interpret.  The 
court  cannot  supply  and  interpolate  these.  That  would  be  to 
make  them;  and  this  is  not  the  province  of  the  court,  but  only 
that  of  the  parties  to  them.  The  court  can  only  construe  what 
appears,  however  informally.  It  cannot  supply  the  substance, 
or  change  or  modify  that  appearing,  although  it  may  be  satisfied 
that  the  parties  to  the  instrument  failed  to  make  it  what  they 
intended.  They  are  bound  by  what  they  have,  in  effect,  under 
the  rules  of  law,  done,  whatever  may  have  been  the  intention. 

It  was  further  suggested,  inasmuch  as  the  court  can,  in  the 
same  action,^  try,  and  hear,  and  determine  both  legal  and  equi- 
table causes  of  action  in  appropriate  cases,  it,  seeing  the  inten- 
tion of  the  parties,  as  to  the  power  of  attorney  and  the  deed 
before  us,  could  and  ought  to  require  them  to  be  reformed,  and 
the  plain  mistake  corrected.  It  may  be  that,  in  appropriate 
cases,  this  could  and  ought  to  be  done.  But  here  the  action  and 
the  cause  of  action  are  simply  at  law.  No  equitable  cause  of 
action  is  alleged,  nor  is  such  relief  demanded.  When  equitable 
rights  are  to  be  litigated  and  relief  sought,  there  must  be  proper 
allegations  and  pleadings  to  such  end,  and  all  parties  to  be 

2  Under  the  Code  legal  and  equi-  But    since    the    adoption    of    the 

table    causes    of    action    may    be  code,  it  has  sometimes  been  stren- 

joined   in   the    same    complaint    in  uously   urged   that   the   law   courts 

a     proper     case,     though     seperate  ought    to    be    able    to    administer 

trials  are  necessary.  equity,   or,  since  one  court  admiu- 

Formerly  courts  of  equity  tried  isters  both  systems,  equity  ought 
certain  legal  claims  and  awarded  to  be  administered  and  equitable 
legal  relief  as  an  incident  to  the  relief  attained  in  a  legal  action. 
main  case  in  equity,  and  this  prac-  The  practical  objection  is  that  the 
tice  does  not  appear  to  be  affected  jury  trial,  which  obtains  as  a  mat- 
by  the  code.  Imperial  Brick  Co.  v.  ter  of  right  in  a  legal  action,  is 
Jewett,  ante  p.  35.  not    well   suited   to   the    task.   Ed. 


98  Actions.  [Chap.  I. 

effected  by  the  relief  demanded  must  be  made  parties  to  the 
action.  It  may  be  that  those  interested  adversely  to  the  plain- 
tiff will  not  consent  to  the  making  of  the  desired  correction,  and 
they  are  entitled  to  have  their  day  in  court,  and  to  contest  the 
claim  of  the  plaintiff  in  the  ordinary  course  of  procedure.  It 
is  a  mistaken  notion,  that  to  some  extent  prevails,  that  under 
the  present  method  of  civil  procedure  the  courts  can  try,  hear, 
and  determine  civil  actions,  and  causes  of  action  anyhow  and 
in  any  way,  however  summary.  It  has  character  and  integrity. 
It  has  purpose,  principles,  and  forms,  that  are  necessary  in  the 
safe  and  orderly  administration  of  public  justice,  that  must  be 
observed,  and  the  courts  must  uphold  and  enforce. 

There  is  error.  The  defendants  are  entitled  to  a  new  trial, 
and  we  so  adjudge.  To  that  end,  let  this  opinion  be  certified 
to  the  superior  court.    It  is  so  ordered. 


JACKSON  v.  STRONG. 

Court  of  Appeals  of  New  York,  1917.    222  N.  T.  149. 

CuDDEBACK,  J.  The  complaint  in  this  action  sets  forth  that 
the  plaintiff  and  the  defendant  Strong,  who  are  attorneys  at 
law,  entered  into  a  contract  to  prosecute  for  their  joint  benefit 
a  negligence  case.  One  William  Simons  had  been  killed  in  an 
accident,  caused,  as  it  was  said,  by  the  carelessness  of  the  In- 
ternational Railway  Company. 

The  plaintiff  and  Strong  agreed,  as  the  complaint  shows,  to 
investigate  the  circumstances  of  Simons'  death  and  ascertain 
if  his  personal  representatives  had  a  cause  of  action  against 
the  railway  company  and  to  bring  suit  against  the  company  if 
it  was  ascertained  that  a  cause  of  action  existed.  They  were 
to  bear  equally  the  expenses  of  the  litigation,  become  partners 
in  the  conduct  of  the  case,  and  share  equally  in  the  receipts. 

The  complaint  further  sets  forth  that  the  suit  was  brought 
by  Strong  as  attorney  against  the  railway  company  and  a  ver- 
dict of  $8,550  was  rendered  in  favor  of  the  personal  representa- 
tives of  the  decedent,  and  that  the  judgment  entered  on  the 
verdict  was  subsequently  affirmed  at  the  Appellate  Division 
and  in  this  court.     Furthermore,  that  the  defendant  Strong  re- 


Sec.  2.]  One  Form  op  Action.  99 

eeived  from  the  railway  company  the  amount  of  the  judgment 
with  interest  and  costs,  and  that  he  now  repudiates  the  contract 
with  the  plaintiff  and  refuses,  after  due  demands,  to  pay  over 
to  the  plaintiff  his  share  of  the  recovery. 

The  defendants  Petrie,  Fiederspiel  and  Thayer  are  joined  as 
defendants  because  the  plaintiff  assigned  to  each  of  them  a  cer- 
tain undivided  part  in  his  share  of  the  judgment  against  the 
railway  company  under  his  agreement  with  the  defendant 
Strong.  It  was  subsequently  stipulated  that  the  plaintiff  should 
collect  and  receive  whatever  sura  these  defendants  might  be 
entitled  to. 

The  plaintiff  in  his  complaint  demanded  judgment  against 
the  defendant  Strong  for  an  accounting  to  determine  the 
amount  due  to  the  plaintiff  and  for  the  recovery  thereof. 

The  answer  of  the  defendant  Strong  is  a  general  denial  of  the 
allegations  of  the  complaint  that  the  defendant  agreed  to  share 
with  the  plaintiff  any  amount  recovered  from  the  railway  com- 
pany, and  the  answer  alleges  that  the  defendant  Strong  simply 
employed  the  plaintiff  to  assist  in  the  prosecution  of  the  ac- 
tion and  agreed  to  pay  him  the  reasonable  value  of  his  services. 
The  other  defendants,  Petrie,  Fiederspiel  and  Thayer,  answered, 
setting  up  their  assignments. 

The  action  was  referred  to  a  referee  to  hear,  try  and  deter- 
mine the  issues,  and  thereafter  the  trial  before  the  referee  pro- 
ceeded. There  was  no  application  by  either  party  for  an  amend- 
ment of  the  pleadings.  The  case  was  then  submitted  to  the 
referee. 

The  referee  rendered  his  report  as  in  an  action  at  law,  finding 
in  substance  that  the  plaintiff,  at  the  request  of  the  defendant 
Strong,  performed  certain  services  in  prosecuting  the  action 
against  the  railway  company  to  recover  damages  for  the  death 
of  Simons  and  that  the  defendant  agreed  to  pay  the  plaintiff 
liberally  out  of  the  recovery  in  the  event  of  success  in  the  action, 
but  nothing  if  the  suit  was  not  successful.  The  referee  also 
found  that  the  prosecution  of  the  case  was  successful  and  that 
the  defendant  Strong  recovered  $4,328.25,  and  that  the  value 
of  the  plaintiff's  services  was  $1,082,  and  his  traveling  expenses 
were  $24.65. 

As  a  conclusion  of  law  the  referee  found  that  the  plaintiff  was 
entitled  to  judgment  against  the  defendant  Strong  for  $1,106.65, 


100  Actions.  [Chap.  I. 

with  costs,  and  he  ordered  judgment  accordingly.  To  these 
findings  the  defendant  duly  filed  exceptions. 

At  the  request  of  the  defendant  the  referee  found  that  there 
was  no  contract  between  Strong  and  the  plaintiff  whereby  the 
latter  acquired  any  specific  interest  in  the  recovery  against  the 
railway  company,  and  also  found  in  effect  that  Strong  and  the 
plaintiff  were  not  partners. 

We  have  then  a  case  wherein  the  complaint  sets  forth  a  cause 
of  action  in  equity  which,  as  the  finding  was,  the  plaintiff  failed 
to  prove  on  the  trial,  and  the  court  without  any  amendment  of 
the  pleadings  awarded  the  plaintiff  damages  as  in  an  action  at 
law.  Was  that  proper?  I  think  not.  There  is  some  confusion 
in  the  cases  bearing  upon  this  subject,  but  the  weight  of  au- 
thority is  that  where  some  ground  of  equitable  jurisdiction  is 
alleged  in  a  complaint  but  fails  of  proof  in  its  entire  scope  on 
the  trial,  and  it  appears  that  there  never  was  any  substantial 
cause  for  equitable  interference,  the  court  will  not  retain  the 
action  and  grant  purely  legal  relief,  but  will  dismiss  the  com- 
plaint.' (Dudley  v.  Congregation,  etc.,  of  St.  Francis,  etc.,  138 
N.  Y.  451;  Arnold  v.  Angell,  62  N.  Y.  508;  Loeb  v.  Supreme 
Lodge  Royal  Arcanum,  198  N.  Y.  180 ;  Walrath  v.  Hanover  Fire 
Ins.  Co.,  216  N.  Y.  220 ;  Freeman  v.  Miller,  157  App.  Div.  715 ; 

3  Andrews,  J.,  in  Saperstein  v.  to  be  tried.  (Sternberger  v.  Mc- 
Mechanics  &  Farmers  Sav.  Bank,  Govern,  56  N.  Y.  12;  Margraf  v. 
228  N.  Y.  257:  *  *  *  "The  Muir,  57  N.  Y.  155;  HafPey  v. 
practice  adopted  was  that  where  Lynch,  143  N.  Y.  241;  Ohl  &  Co. 
specific  performance  had  become  v.  Standard  Steel  Sections,  Inc., 
impossible  at  the  time  an  action  179  App.  Div.  637).  But  it  is  now 
was  begun  and  the  plaintiff  was  an  action  at  law.  Into  such  an 
aware  of  that  fact  the  court  on  action  the  plaintiff  may  not  im- 
denying  equitable  relief  would  not  port  equitable  principles  by  de- 
retain  the  matter  so  as  to  award  mauding  equitable  relief  to  which 
damages.  The  actions  would  be  he  is  not  entitled.  Being  an  ac- 
dismissed  and  the  plaintiff  left  to  tion  at  law  to  recover  damages 
his  legal  remedy     *      *     *.  for    the    breach    of    an    executory 

Under  the  Code  practice  in  this  contract    it    must    be    alleged    and 

state  the  rule  has  been  altered  to  found  either  that  the  plaintiff  him- 

this  extent.     If  a  purely  equitable  self  has   fully  performed  all  those 

action    has    been    pleaded    it    still  concurrent  and  dependent  promises, 

prevails.     If,  however,  in  addition  which    were   the   consideration   for 

to   this   equitable    cause    of    action  the  contract,  or  that  the  perform- 

the  facts  as  stated  give  rise  to  a  ance  has  been  waived  by  the  de- 

legal    liability    then    there    should  fendant."      *      *      * 
be  no  dismissal;  the  action  remains 


Sec.  2,]  One  Form  op  Action.  101 

AUerton  v.  Rhineland  Machine  Works  Co.,  165  App.  Div.  557.) 
Such  also  is  the  general  rule  throughout  the  country.  (19  L. 
R.  A.  [N.  S.]  note,  p.  1064.) 

The  inherent  and  fundamental  difference  between  actions  at 
law  and  suits  in  equity  cannot  be  ignored.  As  has  often  been 
said:  "Pleadings  and  a  distinct  issue  are  essential  to  every  sys- 
tem of  jurisprudence,  and  there  can  be  no  orderly  administra- 
tion of  justice  without  them.  If  a  party  can  allege  one  cause  of 
action  and  then  recover  upon  another,  his  complaint  Avould  serve 
no  useful  purpose."  And  further:  "The  rule  that  judgment 
should  be  rendered  in  conformity  with  the  allegations  and 
proofs  of  the  parties,  *  secundum  allegata  et  probata/  is  funda- 
mental in  the  administration  of  justice.  Any  substantial  de- 
parture from  this  rule  is  sure  to  produce  surprise,  confusion 
and  injustice."     (Lamphere  v.  Lang,  213  N.  Y.  585,  588.) 

I  recommend  that  the  judgment  appealed  from  be  reversed 
and  a  new  trial  granted,  with  costs  to  abide  the  event.* 

Iliscock,  Ch.  J.,  Cardozo,  McLaughlin  and  Andrews,  JJ.,  con- 
cur; Crane,  J.,  concurs  in  result;  Pound,  J.,  takes  no  part. 

Judgment  reversed. 


MERRY  REALTY  CO.  v.  SHAMOKIN  &  HOLLIS  R.  E.  CO. 

Court  of  Appeals  of  New  Yo7-k,  1921.    230  N.  Y.  316. 

Crane,  J.^  #  •  »  -^g^  therefore,  have  the  case  presented 
to  us  as  follows:  The  plaintiff  has  brought  action  to  foreclose 
a  mortgage,  taken  in  exchange  of  property  as  part  considera- 
tion. The  defendant  having  previously  brought  action  for  re- 
scission, counterclaims^  by  pleading  the  facts  justifying  rescis- 

4  Accord:      Bradley    v.    Aldrich,  ciary  relation  and  proof  of  a  legal 

40  N.  Y.  504,  (1869),  complaint  for  debt.    For  a  collection  of  the  later 

rescission  on  ground  of  fraud  and  cases   see  Johnson  v.  Bunn,   19  L. 

proof  of  case   for  damages  at  law  R.  A.   (N.   S.)   1064,  annotated, 

only;  Maguire  v.  Tyler,  47  Mo.  115,  6  Statement  and  parts  of  opinion 

(1870),    complaint    to    charge    de-  omitted. 

fendant     as     constructive     trustee,  6  The     counterclaim     under     the 

and  proof  of  a  legal  right  of  pos-  code   is   a   cause   of   action   set   up 

session;     Anderson    v.     Chilspn,    8  by  the  defendant  against  the  plain- 

S.  D.  64,   (1895),  complaint  for  an  tiff:     see   Ch.  v.  Sec.  2,  post, 
accounting  on  the  basis  of  a  fidu- 


102  Actions.  [Chap.  I. 

sion  and  asking  that  the  exchange  be  set  aside,  that  the  Hollis 
lots  be  restored  to  it  together  with  $1,500  damages. 

The  trial  proceeded  upon  this  theory,  no  other  claims  were 
made  for  relief  than  those  here  stated,  and  the  trial  judge  took 
the  matter  under  advisement. 

The  judgment  was  not  for  rescission,  but  for  $12,000  against 
the  plaintiff  for  fraud  and  deceit.  This  represented  the  differ- 
ence in  the  value  of  the  equities  between  the  properties  ex- 
changed. The  court  canceled  the  mortgage  of  $6,000  in  part 
payment  of  these  damages  and  gave  judgment  for  the  balance 
plus  commissions  paid,  making  $6,625.  Was  the  court  right  in 
thus  awarding  money  damages  for  fraud  and  deceit  instead  of 
rescinding  the  transaction  and  giving  back  the  lots  as  prayed 
for? 

There  is  no  doubt  but  that,  a  court  of  equity,  where  it  appears 
that  rescission  has  become  impossible,  may  grant  money  damages 
in  lieu  thereof,  but  that  is  not  this  case,  as  there  is  no  finding 
and  no  evidence  to  show  that  the  exchange  could  not  have  been 
set  aside  and  the  respective  properties  restored  to  their  original 
ownership  together  with  damages  to  adjust  the  equities.  (Val- 
entine V.  Richardt,  126  N.  Y.  272,  277 ;  Dudley  v.  Congregation, 
Third  Order  of  St.  Francis,  138  N.  Y.  451.) 

The  remedies  for  fraud  are  stated  to  be  (1)  an  action  for  de- 
ceit in  tort;  (2)  in  proper  cases  an  informal  rescission  of  the 
contract  at  law  and  a  recovery  of  what  has  been  parted  with 
thereunder;  (3)  in  proper  eases  a  formal  decree  of  rescission  or 
cancellation  in  equity  and  a  recovery  of  what  has  been  parted 
with  thereunder;  (4)  a  defense  against  the  enforcement  of  the 
executory  promise  induced  by  the  fraud.  The  election  of  one 
of  these  remedies  is  a  waiver  of  the  others.''  (Page  on  Contracts, 
p.  539,  §  339;  Gould  v.  Cayuga  Co.  Nat.  Bank,  99  N.  Y.  333, 
337.) 

If  rescission  is  the  remedy  selected  it  must  be  in  whole  and 
not  in  part.  If  there  be  an  affirmance  it  must  be  of  all  the  terms 
and  conditions  of  the  transaction.  (Hayward  v.  Wemple,  152 
App.  Div.  195,  198 ;  McNaught  v.  Equitable  Life  Insurance  So- 
ciety of  U.  S.,  136  App.  Div.  774;  Catling  v.  Newell,  9  Ind.  571.) 

The  defendant  had  elected  to  rescind  before  this  action  was 

7  But  see  Friedrichsen  v.  Eenard,      amended  so  as  to  convert  it  into 
247  U.  S.  569,   (1918),  allowing  a      an  action  at  law  for  damages. 
bill  in  equity  for  rescission  to  be 


Sec.  2. J  One  Form  of  Action,  103 

brought.  After  the  amendment  of  the  answer  at  the  trial  full 
and  complete  rescission  was  demanded.  The  judgment  was  not 
for  rescission  but  for  damages  as  in  an  action  at  lav.  The  relief 
granted  was  inconsistent  with  the  pleadings  and  tne  theory  of 
the  action.     This,  we  think,  was  error. 

In  Bradley  v.  Aldrich  (40  N.  Y.  504,  509,  511)  it  was  said: 

"It  is  clear  that  this  action,  begun  and  tried  as  an  action  in 
equity,  seeking  upon  various  allegations  equitable  relief,  and 
equitable  relief  only,  viz.,  the  rescission  of  an  agreement  and 
the  restoration  of  the  parties  to  their  former  condition,  has 
ended  as  an  action  on  the  case  for  deceit,  and  an  award  of  dam- 
ages therefor;  which  is  'an  action  for  the  recovery  of  money 
only,'    (Code,  §  253.)     »    *    • 

"According  to  the  record  before  us,  he  was  not  apprised  of 
any  such  claim  until  its  declaration,  and  its  maintenance  ap- 
peared in  the  decision  of  the  judge;  and  to  that  he  excepted, 
which  alone  he  could  do."    *     *     * 

"Whatever  hesitancy  we  have  in  coming  to  this  conclusion  by 
reason  of  the  merits  of  the  defendant's  claim  and  of  the  evi- 
dence amply  sustaining  the  findings  of  fraud  and  deceit  is  over- 
come by  a  desire  to  preserve  to  litigants  the  forms  of  procedure 
prescribed  by  law  and  the  rights  flowing  therefrom.  While  it 
is  true  that  substance  is  always  more  weighty  than  form,  yet 
we  must  not  forget  that  the  preservation  of  our  substantive  law 
necessarily  depends  upon  some  uniformity  in  procedure.  Rights 
and  remedies  are  correlative  and  depend  upon  each  other. 

Upon  a  new  trial  the  defendant  may  have  full  rescission  and 
get  its  lots  back,  or  if  this  is  impossible  owing  to  changed  cir- 
cumstances or  is  inequitable  for  any  reason,  then  it  may  have 
full  and  complete  damages  awarded  by  the  Special  Term  for 
fraud  and  deceit  in  lieu  thereof  and  a  cancellation  of  the  mort- 
gage as  part  liquidation  of  these  damages. 

For  these  reasons  the  judgment  must  be  reversed  and  a  new 
trial  granted,  costs  to  abide  the  event. 

Hiscock,  Ch.  J.,  Hogan,  Cardozo,  Pound,  McLaughlin  and 
Andrews,  JJ,,  concur. 

Judgment  reversed. 


104  /  Actions.  [Chap,  I. 

Section  3.    Special  Proceedings.^ 

LUCAS  V.  LUCAS. 

Supreme  Judicial  Court  of  Massachusetts,  1854.    69  Mass.  136. 

SHA\r,  C.  J.  At  a  former  term  of  the  court,  the  petitioner 
in  the  present  case  libelled  his  wife  to  obtain  a  divorce  a  vinculo 
for  the  cause  of  adultery,  and  upon  a  trial,  judgment  was  ren- 
dered that  the  libel  be  dismissed.  This,  from  the  nature  of  the 
subject  matter,  must  be  deemed  a  final  judgment  against  the  li- 
bellant.  Afterwards,  this  petition  for  a  review  was  filed  by  the 
husband  in  order  to  have  a  new  trial.  At  the  hearing  at  nisi 
pHus,  the  judge  before  whom  it  was  brought  was  of  opinion 
upon  the  evidence  that  there  was  sufficient  ground  shown  for 
granting  a  review,  if  the  court  had  authority  to  grant  it;  and 
this  is  the  question  reserved. 

It  is  insisted  on  the  part  of  the  petitioner,  that  this  court  has 
authority  to  grant  reviews  in  all  civil  actions,  and  that  a  libel 
for  a  divorce  a  vinculo  is  a  civil  action,  because  it  is  a  judicial 
proceeding,  in  which  one  person  seeks  against  another  the  re- 
dress of  a  private  wrong  or  injury.  The  question  depends  on 
Rev.  Stats,  c.  99,  §§  1,  19. 

It  would  hardly  be  safe  to  decide  a  question  of  this  magnitude 
upon  a  mere  brief  definition,  without  regard  to  the  subject 
matter,  the  obvious  objects  and  purposes  of  the  law,  and  the 
antecedent  legislation  on  the  subject.  And  it  would  seem  to  be 
peculiarly  the  duty  of  the  court  to  hesitate  long  before  put- 
ting such  construction  upon  a  statute  which  has  been  long  in 
force,  and  where  there  is  no  precedent  for  applying  the  law  and 
practice  of  reviews  in  the  case  of  divorce.  For,  though  the  re- 
vised statutes  now  in  force  were  passed  comparatively  a  few 
years  since,  they  were  re-enactments  of  laws  which  had  been  in 
force  nearly  half  a  century.    Sts.  1788,  c.  11 ;  1791,  c.  17. 

It  may  be,  that  the  term  "civil  action"  in  some  respects,  and 
to  some  purposes,  may,  without  violence  to  the  language,  be 
held  to  include  proceedings  for  divorce;  and  yet  all  laws  re- 
specting civil  actions  may  not  so  apply  as  to  include  these  pro- 
ceedings.    This  results  necessarily  from  the   uncertainty  and 

1  For    statutory     definition,    see  ante  p.  1. 


Sec.  3.]  Special  Proceedings.  105 

ambiguity  of  language.  The  fact  that  there  has  been  no  prac- 
tice of  allowing  the  review  of  decrees  of  divorce,  and  that  this  is 
a  novel,  if  not  an  unprecedented,  proceeding,  is  strong  evidence 
of  what  the  general  understanding  of  the  law  on  this  subject 
has  been ;  but  this,  of  course,  is  not  conclusive. 

It  will  be  recollected  that  at  the  time  of  the  adoption  of  the 
constitution,  and  for  several  years  after,  proceedings  for  divorce 
were  not  within  the  jurisdiction  of  courts  of  law,  but  of  the 
governor  and  council,  who  proceeded  according  to  the  forms  and 
principles  of  ecclesiastical  eourts;  and  even  when  this  jurisdic- 
tion was  transferred  by  Stat.  1785,  c.  69,  §  7,  it  was  given 
exclusively  to  the  supreme  judicial  court,  acting  as  an  ecclesias- 
tical court,  and  it  was  declared  that  the  decree  of  the  same  court 
should  be  final. 

Mr.  Dane,  who  speaks  of  review  in  civil  actions  as  depending 
on  Massachusetts  statutes,  speaks  of  it  as  limited  to  a  case  where 
there  has  been  a  verdict,  and  to  a  suit  commenced  by  a  writ,  and 
not  by  petition  or  complaint.  6  Dane  Abr.  453,  454.  It  was 
held  in  several  early  cases  in  Massachusetts  that,  to  warrant 
granting  a  review,  the  action  must  have  been  commenced  by 
writ,  and  the  judgment  rendered  on  a  verdict.  Borden  v. 
Bowen,  7  Mass.  93 ;  Stone  v.  Davis,  14  Mass.  360.  Perhaps  that 
would  now  be  holding  the  matter  rather  too  strictly ;  Sturdivant 
V.  Greeley,  4  Greenl.  538 ;  but  it  indicates  the  prevailing  convic- 
tion among  lawyers  and  judges  in  regard  to  these  laws,  after 
they  had  been  in  operation  many  years.  Looking  then  beyond 
the  mere  philological  sense  of  the  term,  "civil  action,"  as  used 
in  this  clause  of  the  revised  statutes,  we  find  that  a  process  for 
divorce  is  in  a  certain  sense  a  judicial  proceeding;  but  that 
originally  this  jurisdiction  was  not  vested  in  the  courts  of  com- 
mon law;  that  the  trials  and  proceedings  were  not  according  to 
the  course  of  the  common  law;  that,  though  in  a  certain  sense 
the  object  of  a  libellant  is  to  obtain  redress  for  a  grievance  or 
private  injury,  yet  that  is  not  by  way  of  recovery  or  damages 
or  obtaining  property,  real  or  personal,  but  rather  for  the  pur- 
pose of  ascertaining  and  declaring  authoritatively  the  status 
and  social  conditions  of  a  party,  upon  which  numerous  and 
most  important  social  and  personal  rights  and  duties  are  made 
by  law  dependent.  It  is  of  the  highest  importance,  not  only 
to  the  security  of  parties  but  to  the  peace  of  society,  that  the 
relation  of  every  party,  either  as  married  or  otherwise,  be  at 


106  Actions.  [Chap.  L 

all  times  distinctly  understood.  In  ordinary  cases  of  review 
of  civil  actions,  the  object  is  not  merely  to  reverse  or  affirm  a 
former  judgment;. but  the  original  judgment  may  be  altered 
or  modified,  enlarged  or  reduced,  and  the  party  reviewing  may 
have  judgment  to  recover  back,  in  whole  or  in  part,  as  the  va- 
rious circumstances  of  different  cases  may  require.  But  if  a 
review  were  to  lie  on  a  final  decree  of  divorce,  it  could  only  be 
to  reverse  or  affirm  the  former  judgment.  The  court,  in  the 
judgment  on  review,  would  in  effect  render  such  judgment  as 
the  court  should  have  rendered  in  the  former  case;  so  that  thfe 
new  decision  would  in  eft'ect  relate  back  to  the  former,  and  de- 
termine the  relations  and  the  consequent  rights  and  duties  of 
parties,  as  from  that  time. 

The  alarming  and  dangerous  consequences  of  the  reversal  of 
a  former  decree  may  be  more  striking  in  a  case  where  such  for- 
mer decree  granted  a  divorce,  than  in  one  where  it  denied  such 
divorce.  After  the  divorce  a  vinculo,  should  the  one  not  the 
guilty  party  marry,  it  would  be  lawful  and  innocent.  A  re- 
versal of  the  decree  would  show  that  the  first  marriage  was 
never  dissolved,  and  the  party  marrying  would  be  liable  to  the 
severe  penalty  of  the  law  against  polygamy.  Should  personal 
property  accrue  to  the  wife,  in  the  meantime,  it  might  be  tres- 
pass or  even  larceny  for  the  husband  to  take  possession  of  it; 
and  yet  a  reversal  of  the  decree  of  divorce  would  show  that  he 
had  a  good  title  and  perfect  right  to  take  it.  Not  only  might 
parties  be  exposed  to  punishment  as  for  crimes,  but  the  rights 
of  husband,  of  wife,  of  children,  to  support  and  maintenance, 
and  the  rights  of  third  parties  towards  them,  would  all  be  left 
in  doubt,  and  this  sometimes  for  years,  whilst  the  petition  and 
the  review  are  pending.    See  Greene  v.  Greene,  2  Gray  363. 

If  such  a  decree  of  reversal  cannot  be  rendered  on  review, 
when  the  decree  sought  to  be  reversed  is  a  decree  granting  a 
divorce,  it  appears  to  us,  though  the  consequences  might  not  be 
so  numerous  and  disastrous,  yet,  upon  principles  of  law  and 
justice,  the  result  must  be  the  same  when  the  review  seeks 
to  reverse  a  judgment  refusing  a  divorce.  Such  a  decree  is  a 
judicial  determination,  as  between  the  parties,  of  the  whole 
matter  of  controversy  contained  in  the  libel,  and  settles  con- 
clusively that  no  divorce  ought  to  be  granted  for  the  causes 
stated,  either  because  not  sufficient  in  law,  or  not  true  in  fact. 
After  such  a  decision  the  parties  are  plainly  bound,  by  every 


Sec.  3.]  Special  Proceedings.  107 

legal  and  moral  obligation,  to  unite  together  in  the  perform- 
ance of  their  conjugal  duties  to  each  other,  and  their  parental 
obligations  to  their  children,  if  they  have  any ;  all  which  would 
be  impeded  and  delayed,  if  not  ultimately  defeated,  by  the 
pendency  of  a  review. 

For  these  reasons,  or  some  of  them,  we  think  that  it  has  never 
been  adjudged  that  a  writ  of  review^  may  be  granted  by  this 
court,  on  a  final  decree  of  the  court,  either  granting  or  refusing 
a  decree  of  divorce;  and  if  the  legislature  had  intended  to  ex- 
tend the  authority  of  the  court  to  such  a  case,  they  would  have 
done  it  by  express  words.  But  the  revised  statutes  did  not  ap- 
parently intend  to  make  any  alteration  of  the  law  in  this  re- 
spect, but  simply  to  reinstate  the  law  as  it  stood  before.  The 
court  are  therefore  of  opinion  that,  though  in  some  respects,  as 
in  taxation  of  costs  to  a  prevailing  party,  a  prosecution  for  a 
divorce  may  have  been  regarded  as  a  civil  action,  yet  the  pro- 
vision of  the  revised  statutes  relied  upon  does  not  authorize 
this  court  to  grant  a  review  of  a  decree  dismissing  a  libel  for  a 
divorce. 

Petition  dismissed. 


HEYWOOD  V.  CITY  OF  BUFFALO. 
Court  of  Appeals  of  New  York,  1856.    14  N.  Y.  534. 

The  defendants  demurred  to  the  complaint  on  the  grounds 
that  the  court  had  not  jurisdiction  of  the  subject  of  the  action ; 
and  that  the  complaint  did  not  state  facts  sufficient  to  constitute 
a  cause  of  action.  The  cause  was  heard  at  a  general  term  of  the 
superior  court,  and  judgment  rendered  in  favor  of  the  defend- 
ants.    The  plaintiff  appealed  to  this  court.* 

T.  A.  Johnson,  J.  This  is  an  action  in  the  nature  of  a  suit 
in  equity,  brought  in  the  superior  court  in  the  city  of  Buffalo, 
demanding  judgment  that  a  certain  assessment  made  by  the  city 

2  This  does  not  mean,  of  course,  utes  expressly  providing  for  an 
that  there  can  be  no  appellate  re-       appeal. 

view    of    divorce    cases.      In    most  3  Statement   condensed,  and  parts 

of  the  states  today  there  are  stat-       of  the  opinion  and  the  concurring 

opinion  omitted. 


108  Actions.  [Chap.  I. 

assessors  under  the  authority  of  the  common  council  of  the  city, 
with  the  approval  of  the  mayor,  upon  the  lands  of  the  plaintiff, 
situated  in  school  district  number  two,  in  said  city,  be  declared 
nuU  and  void ;  and  that  the  defendants  be  perpetually  enjoined 
from  proceeding  to  collect  and  enforce  the  said  assessment 
against  the  plaintiff.  The  complaint  alleges  that  the  whole  as- 
sessment was  $7500  upon  said  school  district,  and  was  made  for 
the  purpose  of  defraying  the  contingent  expenses  thereof.  The 
plaintiff  is  the  owner  of  several  lots  in  the  district,  and  his  pro- 
portion of  this  sum  is  assessed  upon  the  lots.  Various  grounds 
of  illegality  in  making  the  assessment  are  alleged  in  the  com- 
plaint, which  are  all  admitted  by  the  demurrer. 

The  principal  question  in  the  case  is,  whether  the  plaintiff  is 
entitled  to  this  species  of  relief ;  and  if  that  shall  be  determined 
against  him,  it  will  be  unnecessary  to  examine  the  particular 
illegality  specified.  It  was  an  appeal  to  the  equity  powers  of 
the  court  in  which  the  action  was  brought,  and  the  relief  sought 
was  strictly  of  an  equitable  character.  In  order,  therefore,  to 
give  the  plaintiff  the  right  to  litigate  this  question  on  the  equity 
side  of  the  court,  and  the  court  power  to  administer  that  species 
of  relief,  it  was  necessary  for  him  to  state  in  his  complaint  facts 
constituting  an  equitable  cause  of  action.  He  was  bound  to 
make  out  a  case  falling  under  some  acknowledged  head  of  equity 
jurisdiction.  It  is  claimed  that  the  assessment  is  a  lien,  and 
being  unauthorized,  it  is  a  cloud  upon  the  plaintiff's  title,  which 
equity  alone  has  power  to  remove.  It  is  also  claimed  that 'the 
court  has  the  right  to  interpose  its  equitable  powers  to  restrain 
the  collection  of  a  tax  founded  upon  an  illegal  assessment. 

It  is  true  that  such  an  assessment  and  tax  is  a  lien  upon  real 
estate,  and  as  such  has  preference  over  prior  mortgages  and  judg- 
ments. The  charter  (Laws  of  1853,  476,  tit.  5,  §  12)  makes 
every  unpaid  tax  and  assessment  a  lien  upon  the  land  on  which 
it  is  assessed  or  charged,  for  two  years  from  the  time  when  the 
roll  containing  it  was  delivered  to  the  receivers.  (Mayor  of  New 
York  V.  Colgate,  2  Kern.  140.)  This,  of  course,  means  a  legal 
assessment.  But  an  assessment  made  by  a  board  or  body  having 
no  power  to  make  it,  is  a  nullity,  and  no  lien  upon  any  property. 
It  is  claimed,  however,  that  such  an  assessment  is  an  apparent 
lien,  and  should  be  removed  as  a  cloud,  for  the  reason  that  it 
is  invalid.  But  the  power  of  municipal  and  other  inferior  of- 
ficers or  bodies  to  make  assessments  is  in  the  law,  and  is  as  ap- 


Sec.  8.]  Special  Proceedings.  109 

parent  as  the  act  of  assessnvent,  and  if  the  assessment  is  without 
authority  it  is  not  even  an  apparent  lien.  If,  however,  such  an 
assessment  is  to  be  regarded  as  an  apparent  lien,  it  does  not 
follow  that  it  is  a  cloud  within  the  cognizance  of  a  coui't  of 
equity,    *    *    * 

The  general  doctrine  seems  to  be  firmly  established,  that  the 
correction  of  errors,  in  the  proceedings  and  determinations  of 
these  inferior  political  jurisdictions  is  matter  of  legal  and  not 
equitable  cognizance.  And  especially  where,  as  in  this  case,  it 
is  a  mere  question  of  power,  and  there  is  no  allegation  of  fraud 
or  corruption  in  the  body,  or  the  officers  by  whom  the  assess- 
ment is  authorized  or  made.  The  supreme  court,  as  at  present 
organized,  has  thus  far  steadily  refused  to  lend  its  equitable 
powers  for  such  purposes.  (Livingston  v.  Hollenback,  4  Barb. 
10 ;  Thatcher  v.  Dusenbury,  9  How.  Pr.  32 ;  Bouton  v.  The  City 
of  Brooklyn,  15  Barb.  375.)  The  usual  and  undoubted  remedy 
by  certiorari,*  is  always  open  to  every  party  conceiving  himself 
aggrieved.  That  writ  brings  up  the  proceedings  of  the  inferior 
body  for  review,  and  judgment  passes  directly  upon  their  pro- 
ceedings and  determination  thus  reviewed. 

It  is  claimed  that  the  superior  court,  being  possessed  of  both 
law  and  equity  powers,  had  jurisdiction  of  the  subject  matter, 
and  having  jurisdiction,  should  have  rendered  judgment  ap- 
propriate to  the  injury  complained  of  and  admitted  by  the  de- 
murrer. But  its  equitable  powers  only  were  invoked,  and  if  the 
plaintiff  failed  to  make  out  a  case  of  equitable  cognizance  in  his 
complaint,  he  was  entitled  to  no  judgment.  Because  the  same 
court  had  power  to  set  aside  the  assessment,  had  all  the  proceed- 
ings been  removed  into  it  by  the  appropriate  writ  from  the  in- 
ferior tribunal,  it  does  not  follow  that  a  party  may  have  the 

4  At   common   law   the    Court   of  a   writ   of  error   would   not   lie,   or 

King's  Bench  exercised  a  superin-  to    remove    the    record    and    quash 

tending  control  over  inferior  courts  the  proceeding  where   the  inferior 

and  administrative  bodies  by  means  tribunal  or  body  was  acting  ^vith- 

of  the  writ   of  certiorari.     It  was  out  jurisdiction  or  in  excess  of  its 

chiefly  used  to  remove  the  record  jurisdiction. 

from     an    inferior     court     to     the  In  the  United   States  this  pecu- 

King's   Bench   for  the   purpose    of  liar    jurisdiction    of    the    Court    of 

a  trial,  or  for  further  proceedings  King's   Bench    has   generally   been 

in  the   latter   court,   or  to   remove  conferred     on     courts     of     general 

the    record    for    something    in    the  jurisdiction   and   on   certain   appcl- 

nature   of   appellate   review   where  late  courts.     Ed. 


110  Actions.  [Chap.  I. 

same  relief  in  any  other  form  of  proceeding.  There  is  a  wide 
and  radical  distinction  between  bringing  the  record  of  the  pro- 
ceedings of  an  inferior  body  before  a  court  for  the  purpose  of 
having  them  reviewed  and  passed  upon  directly  by  such  courts, 
and  either  reversed  or  affirmed,  and  bringing  an  original  action, 
founded  upon  some  alleged  error  in  the  proceedings  of  such 
body,  and  demanding  judgment,  not  upon  errors  in  the  record, 
but  upon  the  allegations  of  error  in  the  complaint.  Whatever 
distinctions  may  have  been  abolished  by  the  Code  of  Procedure, 
this  certainly  has  not.  Indeed,  it  is  still  the  law  that  a  party 
who  brings  an  equitable  action  must  maintain  it  upon  some 
equitable  ground;  and  if  his  cause  of  action  is  of  a  legal  and 
not  an  equitable  nature,  he  must  bring  a  legal  action,  or  pursue 
a  legal  remedy.  Where  a  matter  is  clearly  or  prima  facie  one 
of  legal  cognizance,  a  party  must,  in  order  to  maintain  an  equi- 
table action  upon  it,  state  clearly  facts  sufficient  to  entitle  him 
to  equitable  relief,  and  to  show  that  a  perfect  remedy  cannot 
be  obtained  at  law.    *    *    * 

Judgment  affirmed. 


BENOIST  V.  MURRIN. 

Supreme  Court  of  Missouri,  1871.     48  Mo.  48. 

Currier,  Judge,  delivered  the  opinion  of  the  court. 

This  was  a  proceeding  under  the  statute  (2  Wag.  Stats.  1368, 
§  29),  to  contest  the  validity  of  a  paper  produced  and  proved 
in  the  St.  Louis  Probate  Court  as  the  last  will  and  testament 
of  the  late  Louis  A.  Benoist.  After  the  case  had  been  pending 
for  some  time  in  the  St.  Louis  Circuit  Court,  and  subsequently 
to  the  framing  of  issues,  or  rather  the  issue  of  devisavit  vel  non, 
the  petition  was  dismissed  without  prejudice  to  the  contestants' 
rights  and  upon  their  motion.  The  contestees  thereupon  moved 
to  set  aside  the  order  of  dismissal,  and  to  reinstate  the  cause  so 
that  they  might  proceed  to  make  proof  of  the  will  in  solemn 
form,  as  it  is  called.  The  motion  was  overruled,  and  the  con- 
testees bring  this  case  here  by  appeal.  Whether  the  court  was 
warranted  in  dismissing  the  petition  in  the  manner  stated,  is  the 
question  presented  by  the  record  for  consideration. 


Sec.  8. J  Special  Proceedings.  Ill 

If  this  were  an  ordinary  suit  between  litigating  parties,  over 
which  the  circuit  court  had  original  jurisdiction,  there  could  be 
no  doubt  of  the  right  of  the  plaintiffs  to  dismiss  or  take  a  non- 
suit at  any  time  prior  to  the  final  submission  of  the  cause  to  the 
court  or  jury.  (Gen.  Stat.  1865,  p.  662,  §  47  ;B  40  Mo.  178;  43 
Mo.  321 ;  Fink  v.  Bruihl,  47  Mo.  173.) 

But  this  is  not  an  ordinary  suit,  nor  had  the  circuit  court 
original  jurisdiction  of  its  subject  matter.  The  original  juris- 
diction was  with  the  Probate  court,  where  the  will  was  original- 
ly probated  and  ordered  to  record.  The  proceedings  were  in 
rem,  operating  directly  upon  the  will — the  res;  and  the  transfer 
of  the  case  to  the  circuit  court  did  not  change  its  character,  or 
the  character  of  its  subject-matter.  The  effect  of  the  contest- 
ants' petition  and  the  proceedings  under  it  was  to  transfer  that 
subject  matter  from  the  Probate  to  the  Circuit  Court  for  ad- 
judication in  the  latter  court.  There  was  no  appeal  in  form, 
but  the  result  of  the  process  was  the  transference  of  the  contest 
from  an  inferior  to  a  superior  court;  and  that  may  be  done 
without  a  formal  appeal,  as  was  decided  by  this  court  in  Dickey 
V.  Malachi,  6  Mo.  182,  and  where  it  was  also  held  that  the  ju- 
risdiction of  the  circuit  court  in  cases  like  the  present  is  not  orig- 
inal. The  jurisdiction  not  being  original,  it  must  be  derivative, 
in  effect  as  upon  an  appeal. 

If  the  statute  had  provided  for  a  transfer  of  this  class  of 
cases  from  the  inferior  to  the  superior  court  l)}^  appeal,  and  the 
case  had  been  brought  up  in  that  way  instead  of  by  petition,  no 
one  would  claim  that  the  proceedings  could  be  dismissed  at  the 
instance  of  the  contestants  without  prejudice  to  them — that  is, 
without  an  affirmance  of  the  prior  judgment. 

In  St.  John's  Lodge  v.  Callender,  4  Ired.  342,  the  party  pro- 
posing to  establish  the  will  moved  for  leave  to  take  a  non-suit, 
and  the  motion  was  overruled  by  the  trial  court,  and  its  action 
was  sustained  by  the  supreme  court  of  North  Carolina.  In  de- 
livering the  opinion  of  the  court,  Ruffin,  C.  J.,  discusses  the 
subject  as  follows:  "We  are  not  sure  that  we  understand  what 
was  meant  by  the  appellants  asking  leave  to  suffer  a  non-suit  as 
the  term  is  not  appropriate  to  proceedings  in  the  Probate  Court. 

6  This    section    of    the    Missouri  the    same    is    finally    submitted    to 

Code   provides   that:      "The  plain-  the   jury,   or    to   the    court    sitting 

tiff  shall  be  allowed  to  dismiss  his  as    a    jury,    or    to    the    court,    and 

suit,    or    take    a    non-suit,    before  not   afterwards." 


112  Actions.  [Chap.  I. 

But  from  analogy  to  actions  at  law,  we  suppose  the  object  was 
to  withdraw  from  the  court  before  a  verdict  was  rendered  on 
the  issue  devisavit  vel  non,  so  as  to  prevent  the  delivery  of  a 
verdict,  and  leave  the  party  at  liberty  to  institute  another  pro- 
ceeding of  the  same  kind.     If  so,  we  think  it  inconsistent  with 
a  proceeding  of  this  sort  and  contrary  to  the  nature  of  the 
jurisdiction   of   the   court   of    probate.      The    instrument    pro- 
pounded is  always  brought  into  court  in  the  first  instance,  and 
the  jurisdiction  is  in  rem.    The  inquiry  is  whether  the  party  de- 
ceased died  testate  or  intestate ;  and  if  the  former,  whether  the 
script  propounded  be  his  will  or  a  part  of  it  or  not.     When 
once  regularly  raised,  the  court  must  pronounce  on  these  ques- 
tions without  reference  to  the  presence  of  this  or  that  person. 
If  a  case  is  about  to  be  heard  or  under  a  hearing  and  a  party 
in  interest  is  not  furnished  with  full  proof  and  has  been  sur- 
prised, his  course  is,  for  cause  shown,  to  get  an  order  for  open- 
ing the  case  to  further  proof  and  deferring  the  pronouncing  of 
sentence.    It  is  analogous  to  the  trial  of  an  issue  out  of  chancery, 
only  one  is  at  the  instance  of  the  chancellor  to  satisfy  his  con- 
science, and  the  other  the  law  compels  the  court  of  probate  to 
make  up  in  every  case  of  a  disputed  will.     From  the  nature 
of  an  issue,  he  who  alleges  the  affirmative  opens  the  case,  and 
for  that  reason  the  party  propounding  the  will  is  commonly 
spoken   of    as   plaintiff.     But   it   is   inaccurate;    for,    properly 
speaking,  there  is  neither  plaintiff  nor  defendant,  but  both  par- 
ties are  equally  actors  in  obedience  to  the  order  directing  the 
issue.    In  neither  case  is  the  party  in  the  affirmative  at  liberty 
to  withdraw  and  defeat  a  trial  more  than  the  party  in  the  nega- 
tive." 

In  North  Carolina  it  seems  that  the  issue  devisavit  vel  non  is 
made  up  in  the  probate  court  and  sent  to  the  superior  court  for 
trial;  while  with  us  the  same  issue  is  framed  upon  the  contest- 
ants' petition.  But  this  can  make  no  difference  with  the  pro- 
ceedings subsequent  to  the  making  up  of  an  issue.  In  either 
case  the  proceedings  is  in  rem,  and  strictly  of  probate  jurisdic- 
tion. 

In  Missouri  and  in  a  number  of  other  states  there  are  two 
modes  of  proving  a  will,  one  provisional  and  the  other  final. 
The  first  is  denominated  the  common  form,  the  second  the  sol- 
emn form.  A  will  is  proved  in  the  common  form  when  it  is  pre- 
sented, proved  and  ordered  to  record,  as  provided  in  the  thir- 


Sec.  3.]  Special  Proceedings.  113 

tcenth  section  of  our  statute  of  wills.  That  is  or  may  be  done  in 
the  absence  of  the  parties  in  interest,  and  without  citing  them 
to  appear.  The  validity  of  the  will  may  nevertheless  be  eon- 
tested,  and  the  proof  of  it  in  solemn  form  required.  "When  a 
will  is  proved  in  solemn  form,"  says  Nisbit,  J.,  in  Brown  v.  An- 
derson, 13  Ga.  176,  "it  is  necessary  that  all  parties  interested 
be  cited  to  witness  the  proceedings,  that  the  will  be  produced  in 
open  court,  that  the  witnesses  be  there  examined,  and  that  all 
parties  in  interest  have  the  privilege  of  cross-examination ; ' ' 
and  that,  in  substance,  is  what  is  contemplated  in  the  twenty- 
ninth  section  of  our  statute  of  wills.  The  proof  in  solemn  form 
in  this  state  is  required  only  when  a  contest  arises,  and  then 
the  ease  is  transferred  to  the  circuit  court  in  the  mode  provided 
by  law  (§  29)  as  was  done  in  the  case  at  bar.  The  question 
here  is — all  the  requisite  parties  being  before  the  court,  and 
every  preliminary  step  having  been  taken — whether  it  lies  wdth 
th  contestants  to  defeat  the  whole  proceeding  by  a  voluntary 
non-suit  or  dismissal. 

In  my  view  every  consideration  of  public  policy  is  against  the 
allowance  of  such  claim.  It  is  opposed  to  the  authorities  and  in 
conflict  with  the  policy  and  nature  of  probate  proceedings  of 
this  character.  It  has  repeatedly  been  held  that  the  propound- 
ers  of  a  will — those  in  the  affirmative- — cannot  take  a  non-suit, 
that  it  is  the  right  of  the  contestants  in  such  cases  to  insist  on  a 
verdict.  (Roberts  v.  Trawk,  13  x\la.  86;  St.  John's  Lodge  v. 
Callender,  supra ;  Whitefield  v.  Hurst,  9  Ired.  175 ;  and  see  Bur- 
rows V.  Ragland,  6  Humph.  484-5 ;  Etheredge  v.  Idley,  1  Bradf . 
95;  2  Redf.  Wills,  28,  §  2  and  note.)  If  the  contestants  may 
insist  on  the  proceedings  going  forward  to  verdict,  certainly 
those  on  whom  is  the  burden  of  establishing  an  instrument 
assailed  and  drawn  in  question  by  the  action  of  the  contestants, 
ought  to  have  the  same  privilege. 

I  think  the  circuit  court  should  have  disposed  of  the  case 
upon  its  merits,  and  not  permitted  the  contestants  to  go  out  of 
court  without  prejudice.  It  w^as  exercising  a  branch  of  probate^ 
jurisdiction,  and  ought  to  have  proceeded  as  it  would  have  been 
the  duty  of  the  court  of  probate  to  have  done  had  the  statute 

6  For    various    probate    proceed-       Code,    see    Deer    Lodge    County    v. 
ings    which    are    not    regarded    as       Kohrs,   2   Mont.   66,    (1874). 
actions  within  the  meaning  of  the 


114  Actions.  [Chap.  I. 

authorized  the  same  proceedings  in  the  latter  court,  and  the 
contest  had  been  there  pending. 

The  judgment  will  be  reversed  and  the  cause  remanded.  The 
defendants  motion  will  be  sustained  and  the  cause  reinstated 
upon  the  docket  of  the  circuit  court.     The  other  judges  concur. 


LACKLAND  v.  GARESCHE. 

Supreme  Court  of  Missouri,  1874.     56  Mo.  267. 

Adams,  Judge,  delivered  the  opinion  of  the  court. 

This  was  an  action  by  attachment,  brought  by  the  plaintiff 
against  Thomas  F.  Smith,  as  a  non-resident  of  this  state,  in 
which  the  defendant,  Garesche  was  summoned  as  garnishee. 
No  other  property  or  effects  of  the  defendant,  Smith,  were  at- 
tached, except  such  as  were  alleged  to  be  held  by  the  garnishee, 
Garesche,  as  trustee  for  the  use  of  Smith.  The  property  held  in 
trust  by  Garesche  consisted  of  several  houses  and  lots  in  the  city 
of  St.  Louis.  The  only  interests  to  which  Smith  was  entitled 
was  the  right,  under  certain  terms  and  conditions,  to  receive  the 
net  income,  during  his  life,  arising  from  the  rents  and  profits 
after  the  payment  of  all  expenses,  such  as  taxes,  insurance,  re- 
pairs, etc.  The  nature  and  terms  of  the  trust  are  manifested  by 
a  deed  of  conveyance,  under  which  Garesche  holds  the  title. 
According  to  a  power  in  the  original  conveyance,  Garesche  had 
been  substituted  as  the  trustee  in  place  of  a  prior  trustee.  For 
a  full  statement  of  the  trusts  of  this  conveyance,  reference  is 
made  to  the  case  of  Mcllvaine  v.  Smith  et  al.  (42  Mo.  45), 
where  it  was  held  by  this  court,  that  Smith  had  no  interest  in 
the  realty,  subject  to  sale  under  execution. 

One  of  the  issues  raised  by  the  pleadings  was  that  the  con- 
veyance under  which  Garesche  held  the  trust  property,  was 
fraudulent  and  void  &&  to  the  creditors  of  Smith ;  but  this  issue 
was  entirely  ignored  at  the  trial.  It  was  not  referred  to,  nor 
was  any  attempt  made  at  all,  to  attack  the  deed  as  being  fraudu- 
lent as  to  creditors,  and,  therefore,  we  shall  treat  this  ease 
as  though  no  such  issue  was  in  it.  Under  this  view,  it  was 
simply  an  attempt  to  draw  an  exclusive  equity  jurisdiction  into 
a  court  of  law,  by  means  of  the  statutory  process  of  garnish- 


Sec.  3.]  Special  Proceedings.  115 

I 
ment  in  attachment  suits.  The  court  undertook  to  call  a  trustee 
of  a  pure  express  trust  to  account,  and  to  enforce  the  per- 
formance of  his  duties  as  trustee  in  a  trial  of  an  issue  at  law, 
by  a  jury,  or  by  the  court  sitting  as  a  jury,  and  proceeded  to 
examine  into  the  state  of  his  accounts,  so  far  as  to  ascertain,  as 
the  record  shows,  that  the  trustee  was  accountable  at  least  for  a 
sum  larger  than  the  plaintiff's  demand,  which  had  been  reduced 
to  a  special  judgment,  in  the  attachment  suit,  and  then  ordered 
the  amount  of  that  judgment  to  be  paid  to  the  plaintiff  by  the 
garnishee.  And  as  the  garnisliee  failed  to  comply  with  this 
order,  the  court  declared  him  a  debtor  of  the  plaintiff  and  ren- 
dered a  judgment  against  him,  as  upon  a  legal  indebtedness  due 
from  him  to  defendant,  Smith,  and  without  any  attempt  to  have 
a  full  and  complete  account  taken  and  stated  of  the  trust  mat- 
ters. 

Although  our  code  of  practice  has  abolished  all  distinctions 
in  the  forms  of  actions  for  the  enforcement  or  protection  of 
private  rights,  and  the  redress  or  prevention  of  private  wrongs, 
the  line  of  demarkation  between  legal  and  equitable  cases  is 
still  preserved  and  fully  maintained  by  the  code.  The  pleadings 
develop  the  nature  of  the  case,  whether  legal  or  equitable,  and 
as  thus  presented,  the  court  proceeds  to  hear  and  determine  it, 
either  as  a  court  of  law  or  of  equity,  according  to  the  pleadings. 
The  remedy  by  attachment'^  for  the  collection  of  debts  in  this 
state  is  essentially  legal,  and  not  equitable,  in  its  nature  and 
procedure.  It  is  founded  alone  upon  statutory  law,  and,  with 
few  modifications,  has  been  in  existence  as  long  as  the  state 
itself.  It  was  in  full  force  when  the  present  code  of  practice 
was  adopted,  and  it  is  safe  to  say  that  it  has  not  been  changed 
or  essentially  modified  by  that  code.  The  whole  tenor  and  scope 
of  our  attachment  laws,  so  far  as  garnishees  are  concerned,  in- 
dicate that  they  are  intended  to  operate  on  legal  property  rights 

7  Attachment    and    Garnishment  method  of  enforcing  a  mechanic's 

are   sometimes   regarded   as   provi-  lien    was    not    an    ordinary    action 

sional  remedies  in   an   action,  and  but  a  special  proceeding  to  which 

sometimes    as    special    proceedings.  the  general  provisions  of  the  code 

See  Witter   v.  Lyon,   34  Wis.  564,  as   to   parties   was   not    applicable. 

(1874),  distinguishing  between  pro-  See  also  Milwaukee  Traction  Co. 

visional  remedies  in  an  action,  and  v.     Elevator     Co.,     142     Wis.     424, 

special  proceedings.  (1910),   proceeding  to   appropriate 

See  Hallahan  v.  Herbert,  57  N.  property    under    the    eminent    do- 

y.  409,   (1874),  that  the  statutory  main  statute. 


116  Actions.  [Chap.  I. 

and  effects  of  the  debtor  in  the  hands  of  the  garnishee.  The 
service  of  the  garnishment  operates  as  an  attachment  of  such 
property  in  his  hands.  (I.  Wagn.  Stat.  184-5,  §§  18,  19,  23,  and 
664,  §§  1,  4,  7,  8.) 

The  issues  on  the  answer  of  the  garnishee  are  to  be  tried  as 
ordinary  issues  between  plaintiff  and  defendant.      (I.  Wagn. 
Stat.,  666,  667,  §  17.)     If  it  appears  upon  the  trial  that  the 
garnishee  is  possessed  of  property,  effects  or  money  of  the  de- 
fendant, the  court  or  jury  must  find  what  property,  etc.,  and 
the  value  thereof,  and  he  may  discharge  himself  by  paying  or 
delivering  over  the  same  to  the  proper  officer  under  the  order 
of  the  court,  etc.      (I.  Wagn.   Stat.  667,   §   18.)      These  pro- 
visions demonstrate  that  the  rights,  credits,  and  effects  in  the 
hands  of  the  garnishee,  are  such  as  are  not  encumbered  with 
trusts,  and  such  as  may  be  delivered  over  or  paid  to  the  officer 
under  the  direction  of  the  court,  free  from  the  embarrassment 
of  the  trust.     It  must  be  borne  in  mind  that  this  was  a  con- 
tinuing express  trust,  to  last  at  least  for  the  lifetime  of  the 
beneficiary,  which  has  been  drawn  into  a  court  of  law,  by  way 
of  garnishment,  to  compel  the  trustee  to  execute  the  trust  in 
favor  of  a  creditor  of  the  beneficiary.     In  my  judgment,  it  was 
not  contemplated  by  the  legislature  to  authorize  a  court  of  law, 
in  a  mere  side  issue  growing  out  of  an  attachment  suit,  to  exer- 
cise the  intricate  and  complicated  duties  of  a  chancellor  in  the 
enforcement  of  purely  equitable  trusts.     It  is  competent,  under 
our  statutes,  to  summon  a  fraudulent  assignee  of  property  and 
effects,  and  compel  him  to  disgorge  in  favor  of  a  creditor.    For 
when  such  issue  is  found  in  favor  of  the  creditor,  no  trust  exists, 
and  the  property  or  effects  can  be  delivered  over  without  any 
trouble,  to  satisfy  the  debt.     So  if  there  has  been  a  settlement 
between  a  trustee  of  an  express  trust  and  his  beneficiary,  and  a 
balance  found  to  be  due  upon  such  settlement,  it  becomes  a  debt 
at  law,  and  may  be  garnisheed.     But  nothing  of  this  kind  ap- 
pears in  this  case.    We  do  not  say  that  the  plaintiff  is  without 
remedy.     (Pendleton  v.  Perkins,  49  Mo.  565.)     What  we  decide 
is,  that  if  this  trust  was  not  fraudulent  as  to  the  creditors  of 
Smith,  the  plaintiff  has  mistaken  his  remedy. 

The  judgment  at  general  term   (reversing  the  judgment  of 
the  trial  court)  is  affirmed.    The  other  judges  concur. 


Sec.  3.]  Special  Proceedings.  117 

CHINN  V.  TRUSTEES. 

Supreme  Court  of  Ohio,  1877.     32  Ohio  St.  236. 

Scott,  J.:  The  plaintiff  in  error  applied  to  the  district 
court  of  Lawrence  County,  for  a  writ  of  mandamus,  command- 
ing the  defendants  in  error  to  execute  and  deliver  to  him  a 
township  bond  of  said  township  of  Fayette,  for  one  hundred 
dollars  in  compliance  with  the  requirements  of  Act  of  April  16, 
1867,  "to  authorize  and  require  the  payment  of  bounties  to 
veteran  volunteers,"  and  the  acts  amendatory  thereof. 

The  facts  stated  in  this  relation  were  such  as  to  bring  his  case, 
prima  facie  at  least,  within  the  purview  of  said  statute,  and  to 
entitle  him  to  such  bond.  He  avers  in  his  relation  that  since 
the  year  1867,  he  has  often  requested  the  trustees  of  said  tovm- 
ship,  and  their  successors  in  office,  including  the  present  board 
of  trustees,  to  draw,  perfect  and  deliver  to  him  such  bond,  which 
they  have  refused  and  still  refuse  to  do. 

His  application  was  made  to  the  district  court  August  9,  1873. 
The  defendants  answered,  and  for  their  first  defense  alleged 
"that  the  cause  of  action  on  which  the  plaintiff's  application 
is  based,  accrued  to  him  against  the  defendants,  more  than  six 
years  prior  to  the  commencement  of  this  suit,  by  the  said  plain- 
tiff, and  so,  they  say  that  the  said  action  is  barred  by  the  statute 
of  limitations."  To  this  defense  the  relator  demurred.  The 
court  overruled  this  demurrer,  and  dismissed  the  case  at  his 
costs.  For  alleged  error  in  this  action  of  the  court  below,  the 
plaintiff  here  prosecutes  his  petition  in  error. 

The  code  of  civil  procedure  limits  the  time  within  which  an 
action  can  be  brought  "upon  a  liability  created  by  statute,  other 
than  a  forfeiture  or  penalty,"  to  six  years.  (Sec.  14.)  This 
provision  is  found  in  title  2,  of  the  Code,  the  object  of  which  is 
to  define  and  prescribe  "the  time  of  commencing  civil  actions." 
The  civil  action  of  the  code  is  a  substitute  for  all  such  judicial 
proceedings  as,  prior  thereto,  were  known,  either  as  actions  at 
law,  or  suits  in  equity.  (Sec.  3.)  By  section  8,  the  limitations 
of  this  title  are  expressly  confined  to  civil  actions.  But  pro- 
ceedings in  mandamus  were  never  regarded  either  as  an  action 
at  law  or  a  suit  in  equity,  and  are  not  therefore  a  civil  action 
within  the  meaning  of  the  code.  IMandaraus  is  an  extraordinary 
or  supplementary  remedy,  which  cannot  be  resorted  to  if  the 


118  Actions.  [Chap.  I. 

party  has  any  other  adequate,  specific  remedy.  The  code 
provides  for  and  regulates  this  remedy,  but  does  not  recognize 
it  as  a  civil  action.  It  declares  that  the  writ  of  mandamus  may 
not  be  issued  in  any  case  where  there  is  a  plain  and  adequate 
remedy  in  the  ordinary  course  of  law.  (Sec.  570.)  And  in 
section  577  it  provides  that:  "No  other  pleadings  or  written 
allegation  is  allowed  than  the  writ  and  answer." 

These  are  the  pleadings  in  the  case,  and  have  the  same  effect, 
and  are  to  be  construed  and  may  be  amended  in  the  same  man- 
ner as  pleadings^  in  a  civil  action;  and  the  issues  thereby  joined 
must  be  tried  and  the  further  proceedings  thereon  had  in  the 
same  manner  ''as  in  a  civil  action."  This  language  clearly  im- 
plies that  mandamus  is  not  comprehended  within  the  civil 
action  of  the  code,  to  which  alone  the  limitations  of  title  2  are 
applicable  as  an  absolute  bar. 

In  holding  otherwise,  we  think  the  court  below  erred,  and  its 
judgment  must,  therefore,  be  reversed.     *     *     * 

Judgment  accordingly. 


STATE  v.  HOEFFNEE. 

Supreme  Court  of  Missouri,  1894.     124  Mo.  488. 

Burgess,  J. :  On  the  9th  day  of  February,  1893,  there  was 
duly  issued  from  the  office  of  the  clerk  of  the  criminal  court 
for  the  city  of  St.  Louis,  a  scire  facias  against  the  defendant, 
which  recited  that  on  the  30th  day  of  April,  1892,  the  defend- 
ant had  signed  a  bond  to  the  state  of  Missouri  in  the  court  of 
criminal  correction  in  said  city  as  the  security  of  one  Lee  Qua 
Lang  (who  then  stood  charged  in  the  court  of  criminal  correc- 
tion with  a  felony)  for  his,  Lang's  appearance  in  the  court 
of  criminal  correction,  on  the  12th  day  of  May,  1892 ;  that  de- 
fault was  made  in  said  court  on  said  last  named  day  by  said 

8  The  general  rules  of  pleading  dinary  writs  from  the  general  pro- 
prescribed  by  the  Code  may  be  visions  of  the  Code,  the  common 
applicable  in  mandamus  cases,  law  rules  as  to  parties  and  plead- 
State  ex  rel.  v.  Jennings,  56  Wis.  ing  may  obtain.  State  ex  rel.  v. 
120,  (1882).  Or,  because  of  the  Williams,  96  Mo.  13,  (1888). 
implied    exclusion    of    the    extraor- 


Sec.  3.]  Special  Proceedings.  119 

Lang,  which  was  certified  to  the  St.  Louis  criminal  court,  and 
judgment  of  forfeiture  rendered  thereon.  The  writ  commanded 
the  defendant  to  appear  on  the  return  day  thereof,  and  show 
cause  why  the  state  of  IVIissouri  should  not  have  execution.  De- 
fendant fi^led  answer  to  the  scire  facias,  putting  in  issue  all  the 
recitals  and  allegations  therein  contained. 

On  the  2d  day  of  October,  1893,  the  cause  was  called  for  trial 
in  the  criminal  court,  when  defendant  requested  and  demanded 
a  trial  by  jury,  which  was  refused  by  the  court,  and  he  saved 
his  exceptions.  The  court  then  proceeded  to  hear  the  case  and 
made  its  finding  in  favor  of  the  state.  From  the  finding  and 
judgment  the  defendant  appealed.  The  only  point  urged  upon 
the  attention  of  this  court  is  the  action  of  the  trial  court  in  re- 
fusing the  defendant  a  trial  by  jury. 

Section  2131,  Rev.  St.  1889,  reads  as  follows:  *'An  issue  of 
fact  in  an  action  for  the  recovery  of  money  only,  or  of  specific 
real  or  personal  property,  must  be  tried  by  a  jury,  unless  a  jury 
trial  be  waived  or  a  reference  ordered  as  hereinafter  provided." 

Whatever  may  have  been  said  in  other  jurisdictions  with  re- 
spect to  the  nature  of  a  proceeding  by  scire  facias  on  a  forfeited 
recognizance,  whether  civil  or  a  continuation  of  the  original 
proceeding,  the  holding  in  this  state  has  been,  that  it  is  a  mere 
continuation  of  an  original  proceeding  to  enforce  the  collection 
of  a  debt  confessed.  State  v.  Randolph,  22  Mo.  474;  State  v. 
Heed,  62  Mo.  559.  See  also  Lawton  v.  State,  5  Tex.  272;  2 
Bouvier's  Inst.,  section  3721,  chap.  27. 

The  writ  is  a  common  law  writ.  It  is  not  the  commence- 
ment of  a  civil  or  new  action  within  the  meaning  of  the  code, 
but  the  writ  recites  the  recognizance  and  judgment  of  forfeiture, 
and  requires  the  parties  against  whom  issued  to  appear  in  court, 
at  the  next  regular  term,  and  show  cause,  if  they  can,  why  final 
judgment  shall  not  be  rendered  against  them  for  the  amount  of 
the  recognizance  so  forfeited,  and  execution  issued  therefor. 
The  practice  has  been  in  this  state,  and  many  others,  to  plead  to 
the  writ,  although  our  code  is  silent  as  to  the  course  to  be  pur- 
sued with  respect  to  a  scire  facias  issued  upon  a  forfeited  recog- 
nizance. Every  defense  which  could  be  made  by  way  of  plea 
or  demurrer  to  a  petition  may  also  be  made  to  the  writ,  and 
when  demurred  to  the  demurrer  goes  to  the  entire  record.  The 
writ  may  be  amended  when  necessary,  as  pleadings  in  civil  cases, 
the  only  difference  being  that  where  a  demurrer  is  filed  to  anv 


120  Actions.  [Chap.  I 

pleading  in  an  ordinary  civil  action,  it  only  goes  to  the  face  of 
such  pleading,  while  in  the  case  of  a  demurrer  to  a  scire  facias, 
issued  upon  a  forfeited  recognizance,  it  goes  to  the  whole  record. 
State  V.  Randolph,  State  v.  Reed,  supra. 

This  is  not  a  civil  action  within  the  meaning  of  the  code  for 
the  recovery  of  money.  Instead  of  a  summons  being  issued  re- 
quiring the  defendant  to  appear  and  answer  a  petition,  as  in  a 
civil  action,  a  scire  facias  issued  to  the  defendant  requiring  him 
to  show  cause  why  a  judgment  already  confessed,  interlocutory 
in  its  effect,  should  not  be  made  final,  and  execution  issued 
thereon,  the  causes  generally  shown  being  nul  tiel  record,  re- 
lease or  accord  and  satisfaction,  no  one  of  which,  nor  all  of 
them,  convert  the  proceedings  into  an  action  which  is  said  to 
be  "a  legal  prosecution  in  an  appropriate  court  by  a  party 
complainant  against  a  party  defendant  to  obtain  the  judgment 
of  that  court  in  relation  to  some  rights  claimed  to  be  secured  or 
some  remedy  claimed  to  be  given  by  law  to  the  party  complain- 
ing." 1  Am.  and  Eng.  Encyclopedia  of  Law,  178;  1  Wait's 
Actions  and  Defenses,  10.  It  is  only  in  such  cases  that  the 
parties  are  entitled  to  a  trial  by  a  jury  in  civil  actions,  unless 
the  right  is  given  by  statute  as  in  the  case  of  inquiry  of  damages 
upon  the  dissolution  of  an  injunction  bond,  and  cases  of  like 
character.  If  the  proceeding  had  been  by  suit  brought  upon  the 
recognizance  bond,  as  is  the  practice  in  some  of  the  states,  then 
the  rule  would  be  different,  and  the  case  triable  by  jury. 

We  have  not  overlooked  the  case  of  Milsap  v.  Wildman,  5  Mo. 
425,  in  which  it  is  held  that  a  scire  facias  is  an  action,  also  a 
suit;  and  Wolf  v.  Shaefer,  4  Mo.  App.  367,  in  which  the  same 
rule  is  announced,  and  in  which  it  is  further  held  that  such 
cases  are  triable  by  jury  unless  the  same  be  waived.  To  the 
same  effect  is  State  v.  Posey,  79  Ala.  45. 

The  Milsap  case  was  a  proceeding  by  a  scire  facias  to  revive 
a  judgment  in  a  civil  suit,  and  the  Wolf  case  was  a  proceeding 
by  scire  facias  in  the  probate  court  under  the  statute  against 
the  administrator  upon  his  bond,  and  are  not,  therefore,  con- 
trolling authority  in  this  case.  In  a  criminal  case  a  proceeding 
on  a  forfeited  recognizance,  by  scire  facias  is,  as  has  been  said, 
but  the  continuation  of  a  proceeding  already  commenced,  while 
in  a  civil  case  it  is  more  like  an  original  action. 

In  Humphries  v.  Lundy,  37  Mo.  320.  which  was  a  proceeding 
to  revive  a  judgment  rendered  by  a  justice  of  the  peace,  Holmes, 


Sec.  3.]  Special  Proceedings.  121 

J.,  in  speaking  for  the  court,  says :  "A  clear  distinction  is  made 
in  the  books  between  an  action  and  a  scire  facias,  Mr.  Chitty 
treating  of  debt  on  judgments,  speaks  of  the  ''remedy  by  scire 
facias,"  as  also  frequently  adopted,  on  which  damages  are  not 
recoverable  for  detaining  a  debt,  and  therefore  he  considers  it 
more  judicious  to  proceed  by  action  upon  a  recognizance  of  bail 
than  by  scire  facias,  which  is  "only  a  continuance  of  a  former 
suit,  and  not  an  original  proceeding."  1  Chitty  on  Pleading, 
127,  299 ;  McGill  v.  Perrigo,  9  Johns.  259 ;  Brown  v.  Harley,  2 
Fla.  159;  Ellis  v.  Jones,  51  Mo.  187.  We  think  the  rule  thus 
announced  in  harmony  with  our  code  and  the  understanding  of 
the  profession  generally. 

From  what  has  been  said,  it  necessarily  follows  that  section 
28,  article  2,  state  constitution,  which  provides  that  "the  right 
of  trial  by  jury  as  heretofore  enjoyed  shall  remain  inviolate," 
has  no  application  to  this  case.  State  ex  rel.  v.  Vail,  53  Mo.  97. 
The  judgment  is  affirmed.    All  of  this  division  concur. 


CHAPTER  II. 
PARTIES  TO  ACTIONS. 

Section  1,     The  Real  Party  in  Interest. 


Code  op  Civil  Procedure  op  New  York, 

§  449.^    "Every  action  must  be  prosecuted  in  the  name^  of  the 
real  party  in  interest,  except  that  an  executor  or  administrator, 


1  This  provision  appears  in  sub- 
stantially the  same  form  in  all  of 
the  codes  except  that  of  Connecti- 
cut. In  a  number  of  the  codes, 
there  is  a  proviso  to  the  effect 
that  the  section  shall  not  authorize 
the  assignment  of  a  thing  in  ac- 
tion   not    arising   out    of   ieontract. 

For  the  exact  wording  of  this 
section  in  the  various  codes,  see: 
Alaska,  Code  Civ.  Proc.  1900,  §§ 
25,  27;  Arizona,  R.  S.  1913,  §§  400, 
401;  Arkansas,  Dig.  Stat.,  1921, 
§§  1089,  1092;  California,  Code  Civ. 
Proc,  1915,  §§  367,  369;  Connecti- 
cut, Gen.  Stat.  1918,  §  5655,  (al- 
lowing assignee  and  equitable 
owner  of  a  chose  in  action  to  sue 
in  his  own  name) ;  Idaho,  Comp. 
Stat.,  1919,  §§  6634,  6636;  Indiana, 
Burn's  Ann.  Stat.,  1914,  §§  251, 
252;  Iowa,  Comp.  Code,  1919,  § 
7084,;  Kansas,  Gen.  Stat.,  1915, 
§§  6915;  6917;  Kentucky,  Rev. 
Code,  1900,  §§  18,  21;  Minnesota, 
Gen.  Stat.,  1913,  §§  7674,  7676; 
Missouri,  R.  S.,  1919,  §§  1155,  1156; 
Montana,  Rev.  Code,  1907,  §  6477; 
Nebraska,  Ann.  Stat.,  1911,  §§  1027, 
1028,  1030;  Nevada,  Rev.  Laws, 
1912,   §§  4986,  4987;   New  Mexico, 


Ann.  Stat.,  1915,  §§  4069,  4070; 
New  York,  Civ.  Prac.  Act.,  1920, 
§  210;  North  Carolina,  Consol. 
Stat.,  1919,  §§  446,  448;  North 
Dakota,  Comp.  Laws,  1913,  §§  7395, 
7397;  Ohio,  Gen.  Code,  1921,  §§ 
11241,  11244;  Oklahoma,  Rev.  Law, 
1910,  §§  4681,  4683;  Oregon,  Comp. 
Laws,  1920,  §§  27,  29;  South  Caro- 
lina, Code,  1912,  §§  160,  162;  South 
Dakota,  Rev.  Code,  1919,  §§  2306, 
2308;  Utah,  Comp.  Laws,  1907,  § 
2902;  Washington,  Rem.  &  Bal. 
Code,  1910,  §§  179,  180;  Wisconsin, 
Stat.,  1919,  §§  2605,  2607;  Wyom- 
ing, Comp.  Stat.,  1920,  §§  5580, 
5582;  United  States,  Equity  Rules, 
1912,   Rule   37. 

2  ' '  The  general  rule  is,  that  the 
action  should  be  brought  in  the 
name  of  the  party  whose  legal 
right  has  been  affected,  against 
the  party  who  committed  the  in- 
jury, or  by  or  against  his  personal 
representative;  and  therefore  a 
correct  knowledge  of  legal  rights, 
and  of  wrongs  remediable  at  law, 
will,  in  general,  direct  by  and 
against  whom  the  action  should  be 
brought."— Chitty's  Pleadings,  5 
Am.   Ed.   1. 


(122) 


Sec.  1.]  The  Eeal  Pabtt  in  Interest.  123 

a  trustee  of  an  express  trust,  or  a  person  expressly  authorized  by 
statute,  may  sue,  without  joining  with  him  the  person  for  whose 
benefit  the  action  is  prosecuted.  A  person,  with  wliom  or  in 
whose  name,  a  contract  is  made  for  the  benefit  of  another,  is  a 
trustee  of  an  express  trust  within  the  meaning  of  this  section." 


WEBB  V.  MORGAN  &  CO. 
Supreme  Court  of  Missouri,  1851.     14  Mo.  428. 

The  defendants  in  error  commenced  suit  against  plaintiffs  in 
error  in  St.  Louis  Court  of  Common  Pleas  on  the  13th  of  July, 
1849,  on  a  promissory  note,  dated  20th  Feb'y,  1848,  payable  to 
L.  M.  Wiley  &  Co.,  at  the  office  of  Loker,  Renick  &  Co.,  in 
St.  Louis,  Mo.,  for  $344,  eight  months  after  date.  On  the  1st 
July,  1849,  Wiley  &  Co.,  assigned  the  same  to  plaintiffs  in  court 
below.  The  petition  describes  another  note  for  $343,  executed 
and  endorsed  as  the  one  first  named.  By  the  answer  of  Webb, 
one  of  the  plaintiffs  in  error,  he  admits  the  execution  of  the 
notes  sued  on  but  denies  that  the  defendants  in  error  were  the 
owners  of  said  notes  and  states  that  said  Wiley  &  Co.  were  the 
only  persons  really  interested  in  said  notes.  Hepp,  the  other 
plaintiff  in  error,  answers  in  substance  the  same  as  Webb. 
Judgment  was  rendered  by  the  court  below  for  the  amount 
claimed,  interest,  etc.  A  motion  for  a  new  trial  was  filed  and 
overruled. 

It  appears  that  on  the  trial  below  the  defendants  in  error 
admitted  that  they  had  no  interest  in  the  notes,  and  were  acting 
merely  as  agents  for  Wiley  &  Co.,  to  collect  the  same.  The 
reasons  contained  in  the  motion  for  a  new  trial  are  that  the 
court  erred  in  entering  judgment  against  plaintiffs  in  error. 
That  the  verdict  and  finding  of  the  court  below  were  against 
evidence,  against  law,  and  against  law  and  evidence. 

Ryland,  J. — The  only  question  arising  in  this  case  is,  can  an 
assignee  to  whom  a  promissory  note  has  been  assigned  for  col- 
lection, bring  the  suit  on  the  note  in  his  name  as  assignee,  under 
the  new  statute  regulating  the  ''practice  in  courts  of  justice"? 
The  appellants  who  were  defendants  below  contend  that  the 
plaintiffs  below  cannot  maintain  their  action,  under  the  above 


124 


Parties  to  Actions.  [Chap.  II. 


mentioned  statute,  because  they  say  that  the  said  plaintiffs  were 
not  the  party  really  interested  in  the  suit. 

The  first  section  of  the  3rd  art.  of  said  act  is  as  follows: 
"Every  civil  action  must  be  prosecuted  in  the  name  of  the  real 
party  in  interest,  except  as  otherwise  provided  in  the  next 
section. 

"2d  Sect.  An  executor  or  administrator,  a  trustee  of  an  ex- 
press trust,  or  a  person  expressly  authorized  by  statute,  may  sue, 
in  his  own  name,  without  joining  with  him  the  person  for  whose 
benefit  the  suit  is  prosecuted. 

Sect.  3.  In  case  of  an  assignment  of  a  thing  in  action,  the 
action  by  the  assignee  shall  be  without  prejudice  to  an  off-set, 
or  other  defence,  existing  at  the  time  of,  or  before  notice  of  the 
a;ssignment ;  but  this  section  shall  not  apply  to  bills  of  exchange, 
nor  to  promissory  notes  for  the  payment  of  money  expressed  on 
the  face  thereof,  to  be  for  value  received,  negotiable  and  payable 
without  defalcation." 

By  the  act  concerning  "Bonds  and  Notes,"  passed  in  1845, 
see  Rev.  Code,  1845,  p.  190— "all  bonds  and  promissory  notes 
for  money  or  property  shall  be  assignable  by  endorsement  on 
such  bond  or  note,  and  the  assignee  may  maintain  an  action 
thereon  in  his  own  name  against  the  obligor,  or  maker,  etc. 

There  is  no  doubt  that  the  Legislature  did  not  intend  by  the 
new  act  concerning  "practice  in  courts  of  justice,"  to  repeal 
the  law  of  1845,  concerning  Bonds  and  Notes.^    They  well  knew 
that  an  assignee  could  sue  in  his  own  name ;  and  the  3d  section 
of  the  new  act  above  quoted  plainly  implies  the  right  of  an 
assignee  to  sue  in  his  own  name.     But  in  this  case,  it  is  said 
that  the  assignees  have  no  interest ;  they  are  merely  the  agents 
for  collection.    "We  consider  that  the  assignment  to  them  creates 
in  them  such  legal  interest,  that  they  thereby  become  the  per- 
sons to  sue.     The  assignment  passes  to  them  under  the  law  of 
1845,  the  legal  title  to  the  note,  and  make  it  their  duty  to  sue — 
and  we  think  the  court  below  acted  properly  in  overruling  the 
defendant's  motion,  and  in  rendering  judgment  for  the  plaintiffs. 
Whenever  the  evidence  shows  the  endorsement  in  assignment 
of  the  note  or  bill  of  exchange  or  bond  to  the  plaintiff,  that  as- 

8  The  same  rule  has  been  em-  Ky.  485,  (1917);  Utah  Imp.  Co. 
bodied  in  the  Negotiable  Instru-  v.  Kenyon,  30  Idaho,  407  (1917), 
ment  Act,  Harrison  v.  Pearcy,  174 


Sec.  1,]  The  Real  Party  in  Interest,  125 

signment  makes  such  plaintiff  the  party  in  legal  interest;*  and 
authorizes  the  action  in  his  name. 

We  cannot  believe  that  the  Legislature  intended  that  the 
courts  should  permit  a  defendant  to  come  forward  with  such  a 
matter  of  defence  as  is  here  set  up.  If  he  has  a  valid  claim  or 
defence  against  the  original  (payee),  he  can  avail  himself  of  it 
under  the  statute;  see  sec.  3,  above  quoted. 

We  think  the  design  of  the  court  below  most  consonant  with 
the  principles  of  law,  and  best  calculated  to  promote  right  and 
justice.^ 

Judge  Napton  concurring,  it  is  therefore  agreed  that  the 
judgment  below  be  affirmed. 


WALKER  v.  MAURO. 

Supreme  Court  of  Missouri,  1853.     18  Mo.  564. 

Gamble,  J. :  The  petition  in  this  case  states  the  fact  that 
Scofield  &  Ferris  were  indebted  to  the  plaintiff,  and  with  suffi- 
cient distinctness  alleges  that  Mauro,  by  being  the  tenant  of 
S.  &  F.  became  indebted  to  them  in  the  sum  of  $150  for  rent. 
It  next  states,  that  S.  &  F.  assigned  to  plaintiff  the  debt  of  the 
defendant  on  account  of  the  rent  due  to  them,  and  that  such 
assignment  is  evidenced  by  an  order  drawn  by  S.  &  F.  on  the 
defendant  for  the  whole  amount  due,  which  order  the  defendant 

4  In  Beattie  v.  Lett,  28  Mo.  596  as  collateral  security,  it  is  gener- 
(1859),  the  right  of  an  endorsee  ally  held  that  the  holder  may  sue, 
to  sue  in  such  a  case  is  put  on  Curtis  v.  Mohr,  18  Wis.  615.  Third 
the  ground  that  he  is  the  trustee  Nat'l  Bank  v.  Exum,  163  N.  C. 
of  an  express  trust.  199.     American  Forest  Co.  v.  Hall, 

5  Accord:  Toby  v.  Ore.  Ey.  Co.,  216  S.  W.  740  (1919);  the  endorser 
98  Cal.  490  (1893);  Village  of  cannot  sue  without  a  redelivery. 
Kent  V.  Dana,  100  Fed.  56,  (1900);  But  where  pledged  without  in- 
Manley  v.  Park,  68  Kan.  400,  dorsement  so  that  the  title  remains 
(1904);  Eaton  v.  Alger,  47  N.  Y.  in  the  pledgor,  the  latter  may  sue, 
345,    (1872).  Bank  v.  Hays,  112  Cal.  75,  (1896); 

Contra:  Bostwick  V.  Bryant,  113  Dickey  v.  Porter,  203  Mo.  1,  (1907). 
Ind.   448;    Abrams   v.    Cureton,    74  For  a  collection  of  the  cases  on 

N.   C.   523.  the   right   of   an   assignee    for   col- 

Where     commercial     paper     has  lection  to  sue,  see  note  to  Stewart 

been    transferred    by    endorsement  v.  Price,  64  L.  E.  A.  581. 


126 


Parties  to  Actions. 


[Chap.  II. 


refused  to  pay.  The  petition  was  demurred  to  and  the  demur- 
rer sustained     *     *     *. 

The  effect  of  our  new  code  of  practice,  in  abolishing  the  dis- 
tinction between  law  and  equity,  is  to  allow  the  assignee  of  a 
chose  in  action  to  bring  suit  in  his  own  name,  in  cases  where, 
by  the  common  law,^  no  assignment  would  be  recognized.  In 
this  respect,  the  rules  of  equity  are  to  prevail,  and  the  as- 
signee may  sue  in  his  own  name.'=^  How  far  the  statute  which 
directs  the  mode  of  assigning  bonds  and  notes  is  affected  by 
this  change  in  our  mode  of  proceeding,  we  will  not  now  say. 

In  the  present  case,  as  the  assignee  of  the  debt  due  from  the 
defendant  to  Schofield  &  Ferris  may  sue  in  his  own  name  (2 
Story's  Eq.  §  1057;  Dobyns  v.  McGovern,  15  Mo.  662;  Ex  parte 
South,  3  Swanst.  393;  Lett  v.  Morrison,  4  Sim.  607),  it  only 
remains  to  consider  whether  such  an  assignment  is  stated  in  the 
petition.    It  is  stated  that  they  assigned  the  debt  to  the  plain- 


6  As  to  the  extent  to  which  as- 
signments of  choses  in  action  were 
recognized  at  common  law,  and 
protection  afforded  to  an  assignee 
in  courts  of  law,  see  Article  by 
Prof.  W.  W.  Cook  on  the  Alien- 
ability of  Choses  in  Action,  29 
Harvard  Law  Eeview,  p.  816. 

7  Grover,  J.  in  Depuy  v.  Strong, 
3  Key.  (N.  Y.)  603;  "It  is  claimed 
that  section  111  of  the  Code  has 
changed  the  law  in  this  respect. 
That  section  provides  that  every 
action  must  be  prosecuted  in  the 
name  of  the  real  party  in  interest, 
with  exceptions  not  applicable  to 
the  present  case.  The  only  change 
effected  by  this  provision  was  to 
enable  courts  of  law  to  treat  as- 
signments of  certain  choses  in  ac- 
tion as  transferring  the  legal  title, 
which  at  common  law,  transferred 
only  the  equitable." 

In  Levy  v.  Levy,  78  Pa.  507,  it 
was  held  that  the  effect  of  the 
New  York  Code  was  to  transfer 
complete  legal  title  to  the  assignee, 
so  that  he  could  sue  in  Pennsyl- 
vania in  his  own  name,  though  in 


case  of  a  local  assignment,  the 
action  must  have  been  brought  in 
the   name   of   the   assignor. 

Mr.  Justice  Davis  in  Thompson 
V.  Ry.  Co.,  6  Wall.  (U.  S.  Sup), 
134,  (1867):  "The  law  of  Ohio 
directs  that  all  suits  be  brought 
in  the  name  of  the  real  party  in 
interest.  This  constitutes  a  title 
to  sue,  when  suit  is  brought  in  the 
state  court,  in  conformity  with  it; 
and  in  all  cases  transferred  from 
the  State  to  the  Federal  Court, 
under  the  12th  section  of  the 
Judiciary  Act,  this  title  will  be 
recognized  and  preserved;  and 
when  a  declaration  is  required  by 
the  rules  of  the  Circuit  Court,  it 
may  be  filed  in  the  name  of  the 
party  who  was  plaintiff  in  the 
state  court."  For  the  present  Con- 
formity Act,  see  U.  S.  Comp.  Stat. 
1913,  section  1536,  ante  p.  2. 

After  a  complete  assignment, 
the  action  cannot  be  brought  by, 
or  in  the  name  of,  the  assignor, 
Ins.  Co.  V.  Carnahan,  63  Ohio  St. 
258  (1900);  Whiting  v.  Glass,  217 
N.   Y.  333    (1916). 


Sec.  1.]  The  Real  Party  in  Interest.  127 

tiff,  and  that  the  assignment  is  evidenced  by  an  order  for  the 
amount  on  the  defendant.  This  is  a  sufficient  assignment  of  the 
fund  in  equity.  Lett  v.  Morrison ;  Ex  parte  South ;  Mandeville 
V.  Welch,  5  Wheat.  277.  At  law  no  action  could  be  maintained 
by  the  assignee,  unless  the  debtor  assumed  to  pay  the  amount 
assigned,  but  in  equity  it  is  different. 

The  judgment  is,  with  the  concurrence  of  the  other  judges, 
reversed,  and  the  cause  remanded. 


CABLE  V.  ST.  LOUIS  MARINE  RY.  &  DOCK  CO. 

Supreme  Court  of  Missouri,  1855.     21  Mo.  133. 

This  was  an  action  by  the  owners  of  the  steamboat  James 
Hewitt  to  recover  damages  for  the  sinking  of  said  boat  by  the 
negligence  of  the  defendant. 

At  the  trial  there  was  evidence  tending  to  show  that,  at  the 
time  of  the  loss,  there  was  an  insurance  upon  three-fourths  of 
the  boat,  and  that  immediately  afterward  and  before  the 
commencement  of  this  suit,  the  interest  insured  w^as  by  the 
plaintiffs  abandoned  to  and  accepted  by  the  underwriters. 

The  defendant  asked  the  court  to  instruct  the  jury  that,  in 
respect  to  the  interest  abandoned,  the  right  of  action  was  in  the 
underwriters  alone,  and  that  ihey  should  have  been  joined  as 
plaintiffs ;  and  that,  in  any  event,  the  plaintiffs  could  not  re- 
cover more  than  one-fourth  of  the  value  of  the  boat.  These  in- 
structions were  refused,  and  after  a  verdict  and  judgment  for 
the  plaintiffs  for  the  value  of  the  boat,  the  defendant  appealed 
to  this  court. 

Scott,  Judge,  delivered  the  opinion  of  the  court. 

All  other  questions  in  this  case  have  been  abandoned,  except 
that  in  relation  to  the  right  of  the  plaintiffs  to  maintain  this 
action  for  the  entire  value  of  the  boat. 

There  can  be  no  doubt  but  that  the  plaintiffs  would  have  been 
the  proper  parties  to  institute  this  action  for  the  entire  sum 
claimed,  had  it  been  brought  under  our  former  system  of  prac- 
tice. Though  there  had  been  an  abandonment  of  the  subject  in- 
sured, and  that  abandonment  accepted  by  the  underwriters,  yet 


128  Parties  to  Actions.  [Chap.  II. 

the  action  would  have  been  properly  brought  for  the  full  value 
of  the  boat  in  their  names. 

It  remains,  then,  to  be  seen  whether,  under  the  circumstances 
of  this  case,  the  action  is  not  properly  brought  in  the  name  of 
the  present  plaintiffs,  notwithstanding  the  present  practice  act. 
It  is  not  controverted,  but  is  admitted,  that  a  right  of  action  for 
a  portion  of  the  damages  arising  from  the  injury  to  the  subject 
insured,  is  in  the  plaintiffs,  and  that  they  have  the  right  to  re- 
cover the  value  of  one-fourth  part  of  the  boat,  which  was  lost 
through  the  alleged  negligence  of  the  defendant. 

Now,  is  there  anything  in  the  present  practice  act  which  af- 
fects or  in  any  way  impairs  the  rule  of  the  common  law  against 
dividing  a  cause  of  action,  or  making  two  causes  of  action  out 
of  one  contract  or  injury  by  a  division  of  it?  The  endorsee  of 
a  bill  of  exchange  is  the  legal  owner  of  it,  and  regularly  a  suit 
upon  such  an  instrument  must  be  brought  in  his  own  name. 
But  if  the  holder  of  a  bill  assign  by  way  of  an  endorsement  one- 
half  of  its  amount,  would  not  the  action,  notwithstanding  the 
assignment,  still  have  to  be  brought  in  the  name  of  the  holder? 
By  our  law,  the  assignee  of  a  bond  is  the  legal  owner  of  it,  and 
suit  thereon  must  be  brought  in  his  name.  If  the  obligee  of  a 
bond  assign  one-half  of  the  sum  of  it,  could  the  assignee,  al- 
though the  legal  owner,  maintain  an  action  in  his  own  name  for 
his  portion  of  the  debt?  In  such  a  case,  would  not  the  suit 
necessarily  be  brought  in  the  name  of  the  obligee,  who  would  re- 
cover the  full  amount  due  on  the  instrument? 

A  cause  of  action  arising  ex  maleficio,  cannot  be  used  as  an 
illustration  of  this  principle,  because  neither  by  the  common 
law  nor  statute  was  it  assignable,  so  as  to  enable  an  assignee  to 
maintain  a  suit  for  the  damages  in  his  own  name. 

We  do  not  consider  that  the  provision  in  the  present  practice 
act,  which  requires  actions  to  be  brought  in  the  name  of  the  real 
party  in  interest,  affects  this  principle  of  the  common  law. 
Under  the  former  practice,  and  even  now,  the  legal  owner  of  an 
instrument  transferred  by  assignment  must  sue  in  his  own 
name,  yet  we  have  seen  that  the  legal  owner  of  a  part  of  a 
debt  secured  by  a  bond,  could  not  maintain  an  action  on  it.  It 
could  only  be  done  when  he  was  the  assignee  of  the  entire  debt. 
So  the  statute  requiring  the  real  party  in  interest  to  sue,  should 
be  construed  in  reference  to  the  principle  of  the  common  law 
above  stated,  and  must  be  limited  to  those  cases  in  which  the 


Sec.  1.]  The  Heal  Party  in  Interest.  129 

real  party  in  interest  possesses  the  entire  cause  of  action.  The 
original  owner  of  a  cause  of  action  cannot,  by  parting  with  a 
portion^  of  his  interest  in  it,  give  a  right  of  action  to  his  as- 
signee, neither  by  the  common  law  nor  by  anything  contained 
in  the  present  act  regulating  practice  in  the  courts  of  justice. 

We  do  not  wish  to  be  understood  as  expressing  any  opinion 
as  to  the  manner  in  which  the  suit  should  have  been  brought  had 
the  entire  boat  been  insured  by  the  owners,  and  they  indemni- 
fied by  their  policy. 

The  other  judges  concurring,  the  judgment  will  be  ajffirmed. 


McARTHUR  v.  GREEN  BAY  CANAL  COMPANY. 

Supreme  Court  of  Wisconsin,  1874.    34  Wis.  139. 

This  action  was  brought  to  recover  damages  for  the  injury  to 
the  barge  and  the  detention  of  the  tug;  and  the  complaint  al- 
leges that  such  injury  and  detention  were  caused  by  the  negli- 
gence of  the  defendant  in  the  management  of  the  canal.    *    *    * 

The  plaintiff  was  not  the  owner  of  the  tug;  but  before  the 
action  was  commenced,  her  owners  assigned  to  him  their  claim 
for  damages  for  the  detention  thereof.  An  objection  that  this 
claim  is  not  assignable  so  that  the  plaintiff  may  maintain  an 
action  therefor  in  his  own  name,  was  made  at  the  trial  and 
overruled  by  the  court. 

The  plaintiff  recovered  for  the  injury  to  the  barge  and  for 
the  detention  of  the  tug;  and  from  the  judgment  in  his  favor, 
the  defendant  appealed. 

After  an  affirmance  of  the  judgment,  the  defendant  moved 
for  a  rehearing.® 

Lyon,  J. :  *  *  *  The  question  whether  the  claim  for 
damages  for  the  detention  of  the  tug  is  assignable,  so  that  the 
plaintiff,  who  is  the  assignee  of  such  claim,  may  maintain  an 

8  In   Swarthout   v.   C.   &   N.   Ey.  was    held,    contrary    to    the    view 

Co.,    49    Wis.    628    (1880),    it    was  taken   in   the   principal   case,   that 

held  that  the  insurer  in  such  cases  the   owner   could   not   sue   without 

might    properly    join    as    plaintiff  joining  the  insurer   as  co-plaintiff, 
with   the   owner;    and   in  Pratt   v.  9  Statement   condensed  and   part 

Eadford,    52    Wis.    114,    (1881),    it  of  the  opinion  omitted. 


130  Parties  to  Actions.  [Chap.  II. 

action  thereon  in  his  own  name,  has  not  been  determined,  for 
reasons  stated  in  the  former  opinion.  The  learned  counsel  for 
the  defendant  now  inform  us  that  they  did  not  intend  to  waive 
their  objection  to  the  right  of  the  plaintiff  to  recover  such 
damages,  and  call  upon  us  to  determine  the  question  on  this 
motion;  but,  unfortunately  for  us,  they  have  not  favored  us 
with  any  argument  or  citation  of  authorities  on  the  question. 
StiU  it  is  our  duty  to  determine  it. 

The  action  is  to  recover  damages  for  injuries  to  personal 
property,  caused  by  the  negligence  of  the  defendant.     It  does 
not  arise  out  of  a  contract,  but  sounds  in  tort.     Beyond  all 
question,  a  right  of  action  for  injuries  to,  or  the  conversion  of 
personal  property,  while  not  assignable  at  the  common  law,  is 
assignable  in  equity,  unless  that  quality  is  taken  away  by  sec. 
12,  ch.  122,  R.  S.,  which  is  as  follows:    ** Every  action  must  be 
prosecuted  in  the  name  of  the  real  party  in  interest,  except  as 
otherwise  provided  in  section  fourteen;  but  this  section  shall 
not  be  deemed  to  authorize  the  assignment  of  a  thing  in  action 
not  arising  out  of  a  contract. "1°     (Tay.  Stats.  1418,  §  12.)     The 
exception  mentioned  has  no  relation  to  this  action.     The  above 
provision  is  contained  in  the  New  York  code  of  procedure ;  and 
it  has  been  held  by  the  courts  of  that  state  in  several  cases  that 
the  last  clause  of  the  section  does  not  prohibit  the  assignment 
of  a  thing  in  action  which  was  assignable  in  equity  before  the 
code  was  enacted,  but  only  relates  to  or  precludes  the  assign- 
ment of  those  choses  in  action  for  personal  torts  which  die  with 
the  party  and  which  never  were  assignable  either  in  law  or  in 
equity.    Hence  those  cases  hold  that  the  assignee  of  a  thing  in 
action  not  arising  out  of  a  contract  may  maintain  an  action 
thereon  in  his  own  name,  in  all  cases  where  the  cause  of  action 
is  assignable  in  equity.     Some  of  the  cases  hold,  or  strongly  in- 
timate, that  survivorship  is  the  test  of  assignability^ — that  is  to 
say,  that  every  chose  in  action  which  survives  to  the  personal 

10  This    proviso    did    not    appear  torts  which  are  assignable,  see  Me- 

in   the    New   York    Code    of    3  849,  Kee  v.  Judd,  12  N.  Y.  622   (1855); 

but  was  added  in  1851,  See  Laws  North   Chicago  Ey.  v.  Ackley,  171 

of    N.    Y.    1851,    p.    882.     It    was  111.  100,  44  L.  R.  A.  177,  annotated, 

omitted    from    the    later    revision,  As  to  the  effect  of  statutes  mak- 

ante  p.  122.    See  also  Butler  v.  Ry.,  ing    certain    rights    of    action    for 

22   Barb.   110;    Snyder   v,    Ry.,   86  torts    survive,    see    Wells    v.    City 

Mo.  613    (1885).  Hotel    Co.,    27    L.    R.    A.    (N.    S.) 

1  For    the    rights    of    action    for  404,  annotated. 


Sec.  1.]  The  Real  Party  in  Interest.  131 

representative  of  the  party,  is  assignable  in  equity,  and  may  be 
sued  upon  in  the  name  of  the  assignee.  But  Avhether  this  be  the 
true  test  or  not,  we  think  the  New  York  courts  have  given  the 
statute  a  sound  interpretation  in  respect  to  the  assignability  of 
claims  for  damages  for  injuries  to  property. 

The  following  are  some  of  the  authorities  which  sustain  the 
principles  above  quoted:  The  People  ex  rel.  Stanton  v.  Tioga 
C.  P.,  19  Wend.  73 ;  McKee  v.  Judd,  12  N.  Y.  622 ;  Waldron  v. 
Willard,  17  id.  466;  Merril  v.  Grinnell,  30  id.  594;  Fulton 
Fire  Ins.  Co.  v.  Baldwin,  37  id.  648;  Butler  v.  N.  Y.  &  Erie 
R.  R.  Co.,  22  Barb.  110;  Dininny  v.  Fay,  38  id.  18;  1  Chitty's 
PI.  69.  These  authorities  are  cited  in  the  brief  of  counsel  for 
the  plaintiff.  See  also  R.  S.,  ch.  135,  sec.  2,  as  to  survival  of 
actions,  and  Noonan  v.  Orton,  decided  at  the  present  term. 

It  must  be  held  that  the  action  to  recover  damages  for  the  de- 
tention of  the  tug  was  properly  brought  in  the  name  of  the 
plaintiff. 

Motion  denied. 


E.  A.  GREEN  v.  REPUBLIC  FIRE  INSURANCE  CO. 

Court  of  Appeals  of  New  York,  18S1.     84  N.  Y.  572. 

This  action  was  brought  upon  a  judgment  of  the  Circuit 
Court  of  Warren  County  in  the  State  of  Mississippi. 

That  action  as  appeared  by  the  record  was  brought  and 
judgment  recovered  by  William  R.  Greene  and  others,  composing 
the  firm  of  William  R.  Greene  &  Co.,  for  the  use  of  plaintiff 
upon  a  policy  of  insurance  issued  to  that  firm  by  defendant.^ 

Miller,  J.:  This  case  involves  the  question  whether  the 
plaintiff  was  the  actual  owner  of  the  judgment  on  which  this 
suit  was  brought.  We  are  of  the  opinion  that  he  was  such 
owner,  and  as  the  real  party  in  interest,  within  the  provisions 
of  the  Code,  the  action  was  properly  commenced  in  his  name. 
The  evidence  upon  the  trial  clearly  established  the  plaintiff's 
ownership.  The  policy  upon  which  the  judgment  was  obtained 
originally  was  issued  to  William  R.  Greene  &  Co.,  and  the  action 

2  Statement  condensed  and  part  of  opinion   omitted. 


132  Parties  to  Actions.  [Ceap.  II. 

was  brought  in  their  name,  the  declaration  stating  that  they 
were  copartners  ''who  sue  herein  for  the  use  of  Edward  A. 
Greene." 

As  the  common  law  prevailed  in  the  State  of  Mississippi,  and 
a  chose  in  action  was  not  assignable,  the  suit  could  not  be 
brought  there  in  the  name  of  Edward  A.  Greene,  the  real 
owner;  and  it  seems  that  the  laws  of  Mississippi  authorize  the 
statement  made  in  the  complaint,  and  which  was  followed  in 
all  the  pleadings  and  in  the  judgment  record,  to  the  effect  that 
the  action  was  for  the  use  and  benefit  of  Edward  A.  Greene. 
As  the  pleadings  and  the  record  stand,  every  presumption  is  in 
favor  of  the  ownership  of  Edward  A.  Greene.    *     *     * 

The  bringing  of  an  action  for  the  use  of  a  party  in  interest, 
in  accordance  with  the  common-law  rule  that  a  chose  in  action 
is  not  assignable,  is  recognized  in  the  decisions.  (Morton  v. 
Morton,  13  Serg.  &  Bawle  107;  Welch  v.  Mandeville,  1  Wheat 
233  and  note ;  McCullon  v.  Coxe,  1  Dallas  139 ;  Canby  v.  Ridg- 
way,  1  Binney  496;  Southgate  v.  Montgomery,  1  Paige  41-47.) 

The  plaintiff  in  such  an  action  is  merely  a  nominal  party.  He 
has  no  actual  interest  in  the  suit,  cannot  control  it,  nor  in  any 
way  interfere  with  the  rights  of  the  real  party;  nor  is  he  a 
trustee  in  any  sense,  as  he  has  no  authority  whatever.  The 
owner  alone  is  the  real  party,  and  it  is  only  by  reason  of  the  rule 
referred  to,  which  in  this  State  has  been  superseded  by  the 
Code,  that  the  action  is  brought  in  this  form.  The  judgment* 
belongs  to  the  owner  quite  as  much  as  if  he  was  named  as  the 
plaintiff,  and  under  the  Code  he  alone  can  sue  to  recover  the 
same.  The  other  objections  urged  as  to  the  right  of  the  plain- 
tiff to  maintain  this  action  do  not,  we  think,  demand  discussion. 
*     •     * 

The  judgment  of  the  General  Term  was  right  and  should  be 
affirmed,  and  under  appellant's  stipulation  judgment  absolute 
should  be  ordered  for  the  plaintiff. 

8  That  a  judgment  of  a  court  of  of  the  constitution  of  the  United 

record    of    another    state    must   be  States,  see  Andrews  v.  Montgom- 

treated  as  a  debt  of  record  under  ery,   19   John,   162,    (N.   Y.    1821). 
the  "full  faith  and  credit"  clause 


Sec,  1.]  The  Real  Party  in  Interest.  133 

ANDERSON  v.  REARDON. 

Supreme  Court  of  Minnesota,  1891.    46  Minn.  175. 

Appeal  by  plaintiff  from  an  order  of  the  municipal  court  of 
St.  Paul,  refusing  a  new  trial  after  a  dismissal  ordered  at  the 
trial  in  an  action  to  recover  $98  for  goods  sold  and  delivered 
to  defendant  by  one  Marie  Scherer,  the  plaintiff's  assignor. 

Mitchell,  J. :  One  Mrs.  Scherer  executed  to  plaintiff  a  writ- 
ten assignment  of  the  demand  upon  which  this  action  was 
brought.  It  appeared  from  the  evidence  that,  although  the 
written  assignment  was  unqualified  and  unrestricted  in  its  terms, 
yet  there  was  a  verbal  understanding  between  the  assignor  and 
the  assignee  that  out  of  the  proceeds  of  the  claim,  when  col- 
lected, the  latter  was  to  retain  the  amount  due  him  for  services 
already  rendered,  and  to  be  thereafter  rendered  by  him  to  the 
former,  and  also  pay  certain  debts  owned  by  her  to  third  par- 
ties, and  then  remit  the  balance,  if  any,  to  her.  It  also  ap- 
peared that,  when  this  action  was  commenced,  the  plaintiff  had 
already  collected  on  the  demand  enough  to  pay  his  own  claim 
for  services  up  to  that  time.  When  the  plaintiff  rested,  the 
trial  court  dismissed  the  action,  on  the  ground  that  the  plain- 
tiff was  not  the  real  party  in  interest.  This  was  error.  By 
virtue  of  the  assignment  the  plaintiff  became  the  legal  owner 
of  the  claim,  and  as  such  could  maintain  the  action.  It  is  no 
concern  of  the  defendant  whether  the  assignee  of  a  claim  re- 
ceives the  money  on  its  own  right  or  as  the  trustee  of  the 
assignor.*  It  is  enough  for  him  to  know  that  the  plaintiff  is 
the  party  in  legal  interest,  and  that  a  recovery  by  him  will 
be  full  protection  against  another  suit  by  the  assignor.  There 
is  no  room  for  the  distinction  in  this  respect  sought  to  be  made 
by  defendant  between  negotiable  paper  and  other  choses  in 
action.^    Castner  v.  Austin,  2  Minn.  32  (44)  ;  Vanstrum  v.  Lil- 

4  Accord:      Hall    v.    Mass.    Bond  the     "equitable     and     bona     fide 

Co.,  86  Kan.  342,  (1912);  Sheridan  owner",  and  therefore  not  entitled 

V.    Mayor,    68    N.    Y.    30,    (1876);  to    sue    under    the    terms    of    the 

King  V.  Miller,  53  Or.  53    (1909);  Connecticut  Code,  Muller  v.  Witte, 

Hankweitz    v.    Barrett,    143    Wis.  78   Conn.  495,   (1906). 
639,  (1910).  For  the  contrary  view,  6  In  Gay  v.  Orcutt,  169  Mo.  400, 

see   Stewart  v.  Price,  64  L.  R.  A.  (1902),  where  a  number  of  claims 

581,  annotated.  had    been    assigned    for    purposes 

An  assignee  for  collection  is  not  of  suit,  the  assignee  attempted  to 


134  Parties  to  Actions.  [Chap.  II. 

jengren,  37  Minn.  191  (33  N.  W.  Rep.  555)  ;  Elmquist  v. 
Markoe,  45  Minn.  305  (47  N.  W.  Rep.  970).  It  is  suggested 
that  certain  exhibits  which  were  introduced  in  evidence  are 
not  made  a  part  of  the  settled  case.  This  is  true,  but  we  think 
that  their  nature  and  contents  sufficiently  appear  from  the 
"case." 

Order  reversed. 


CASSIDY  V.  FIRST  NATIONAL  BANK. 

Supreme  Court  of  Minnesota,  1882.     30  Minn.  86. 

Berry,  J.:  The  defendant  issued  the  following  instrument, 
signed  by  its  president : 

"First  National  Bank, 
"Faribault,  Minnesota,  June  1,  1880. 

"Jerry  Cassidy,  Esq.,  has  deposited  in  this  bank  $1,050  pay- 
able to  himself  or  order,  in  current  funds,  on  the  return  of 
this  certificate  properly  indorsed." 

The  money  deposited  was  the  property  of  plaintiff,  by  whom 
it  was  handed  to  Jerry  Cassidy,  her  husband,  to  be  deposited 
in  the  defendant  bank  in  his  or  her  name  as  he  saw  fit.  Imme- 
diately upon  receiving  the  certificate  he  delivered  it  to  plaintiff, 
who  ever  since  has  had  its  exclusive  possession  and  control, 
and  has  been  the  real  owner  of  the  debt  evidenced  by  it.  Before 
the  commencement  of  this  action  she  presented  the  certificate  to 
defendant  and  demanded  payment  of  the  balance  due  thereon, 

dismiss,    but    the    trial    court    per-  the   assignor,   and  afforded  protec- 

mitted    the    assignors,    on    giving  tion    against    the    assignor's    acts, 

bond,   to   proceed   with    the   action  Thus,   in  Legh   v.   Legh,    1   Bos.   & 

in  the  name   of  the  assignee.     On  P.  447,   (1799),  the  court  set  aside 

appeal    it    was    held    that    the    as-  a  plea  of  release  and   ordered  the 

signors  had  no   standing   to   inter-  cancellation   of  a  release   executed 

fere    with    the    action,    which    the  by  the  assignor  after  notice  to  the 

assignee  might  continue  or  dismiss  defendant  of  the  assignment.     The 

as  he   saw  fit.  same  course  was  followed  in  Payne 

Under    the    former    practice    the  v.    Eogers,    1    Doug.    407,     (1780) 

law    courts    fully    recognized    the  where  the  action  had  been  brought 

standing  of  an  assignee  to  control  by    the    landlord   in    the    name    of 

an  action  brought  in  the  name  of  his  tenant. 


Sec.  1.]  The  Real  Party  in  Interest.  135 

at  the  same  time  informing  defendant  that  she  was  its  lawful 
owner  and  holder,  and  offering  to  surrender  it  upon  payment. 
Defendant  refused  payment  upon  the  ground  that  the  cer- 
tificate had  not  been  indorsed,  and  was  claimed  by  Jerry  Cas- 
sidy  as  his  own.    In  fact,  it  has  not  been  indorsed. 

The  certificate  is  in  effect  a  negotiable  promissory  note.  Par- 
dee V.  Fish,  60  N.  Y.  265 ;  Klauber  v.  Biggerstaff,  47  "Wis.  551 
(S.  C.  3  N.  W.  Rep.  357).  The  fact  that  the  sum  named  in  it 
is  payable  "on  the  return"  of  the  certificate  does  not  raise  a 
contingency  affecting  its  character  as  such  note.  In  the  ab- 
sence of  these  words,  the  duty  to  return  upon  payment  would  be 
implied,  as  in  case  of  a  negotiable  promissory  note  in  common 
form.  Notwithstanding  it  is  made  payable  to  the  depositor  or 
his  order,  a  third  person  may  become  its  owner  without  in- 
dorsement. This  is,  in  effect,  determined  in  Pease  v.  Rush,  2 
Minn.  107  (Gil.  89).  In  that  case  the  title  of  a  note  made  pay- 
able "to  the  order"  of  certain  persons  named  was  held  to  pass 
by  delivery  without  the  indorsement^  of  the  persons  to  whose 
order  it  was  payable.  That  case  also  determined  that  the  party 
acquiring  title  by  such  delivery  without  indorsements  was  the 
real  party  in  interest,  who  was,  therefore,  under  our  practice, 
entitled  to  maintain  an  action  upon  the  note  in  his  own  name. 
See  also  Foster  v.  Berkey,  8  Minn.  351  (Gil.  310)  ;  White  v. 
Phelps,  14  Minn.  27. 

It  is  impossible  to  distinguish  the  case  at  bar  in  principle 
from  the  cases  cited.  Here  the  sum  named  in  the  certificate  is 
payable  to  Jerry  Cassidy  or  his  order  upon  the  return  of  the 
certificate  properly  indorsed.  In  the  case  cited  from  3  Minn., 
the  sum  named  in  the  note  was  payable  "to  the  order"  of  the 
persons  named  therein ;  that  is,  in  legal  significance,  to  those  to 
whom  they  should  order  it  to  be  paid  by  their  indorsement,  and 
upon  the  return  or  delivery  up  of  the  note.  There  is  no  sub- 
stantial difference  between  the  two  cases.  In  either,  title  may  be 
acquired  by  delivery,  and  thereupon  the  owner  and  holder,  as 
the  real  party  in  interest,  may  maintain  an  action  for  the 
contents  of  the  instrument  in  his  own  name.  If  in  the  one  case 
the  note,  or  in  the  other  (as  here)  the  certificate,  is  claimed  by 

6  Ace:     Boeka  v.  Nuella,  28  Mo.  The  same  result  seems   to  have 

180,  (1859);  for  a  collection  of  the  been  accomplished  by  the  negotia- 

later  cases,  see,  note  to  27  L.  E.  A.  ble    Instrument    Act,    Goodsell    v. 

(N.  S.)   1113.  McElroy,  86  Conn.  402,  (1912). 


136  Parties  to  Actions.  [Chap.  II. 

some  person  other  than  the  plaintiff,  the  maker  of  the  note  or 
the  certificate  may  protect  himself  by  bringing  the  money  into 
(!ourt  and  compelling  an  interpleader  under  section  131,  c.  66, 
Gen.  St.  1878.  Judgment  for  the  plaintiff  was  properly  or- 
dered and  entered  below,  and  is  accordingly  affirmed^ 


KINGSLAND  v.  CHRISMAN. 

Court  of  Appeals  of  Missouri,  1887.    28  Mo.  App.  308. 

This  is  an  action  in  replevin  for  the  recovery  of  the  posses- 
sion of  certain  personal  property.  The  facts  are  as  follows :  On 
the  fourth  day  of  May,  1884,  one  W.  C.  Everett  sold  to  one 
Stephen  Gaucher  the  property  in  controversy,  for  which 
Gaucher  executed  to  Everett  his  promissory  note.  To  secure 
this  note,  Gaucher  executed,  on  the  same  daj^,  a  chattel  mort- 
gage on  the  property  to  Everett.  Before  the  maturity  of  the 
note,  Everett  assigned  the  same,  by  writing  his  name  on  the 
back  thereof  and  delivering  it  to  one  Sheldon,  for  a  valuable 
consideration;  and,  thereafter,  and  before  the  maturity  of  the 
note,  said  Sheldon,  in  the  same  manner,  assigned  the  note  to 
plaintiff,  for  a  valuable  consideration.  By  the  terms  of  the 
mortgage  the  mortgagor  was  to  retain  the  possession  of  the 
mortgaged  property  until  default  in  paying  the  note.  After  the 
maturity  of  the  note,  the  debt  being  unpaid,  the  defendants 
were  in  the  possession  of  the  property  mortgaged.  How  they 
acquired  this  possession  does  not  appear.  In  their  answer  they 
pleaded  ownership.  At  the  trial  the  plaintiff,  after  proof  of  the 
foregoing  facts,  rested.  Thereupon  the  defendants  demurred  to 
the  evidence.  The  court  sustained  the  demurrer  and  plaintiff 
has  appealed. 

1 1n  McDowell  v.  Bartlett,  14  la.  See   also  Seattle  Nat  '1  Bank  v. 

157    (1862),   plaintiff   was    allowed  Emmons,     16     Wash.     585,   (1897), 

to   sue   in  his    own  name    as   equi-  where    the    plaintiff    to    whom    the 

table  owner  of  a  note  payable  to  original    note    had    been    assigned 

a    third    person,    though    plaintiff  was    allowed    to    sue    in    his    own 

did  not    obtain   possession    of    the  name  on  a  renewal  note  given  to 

note  until  after  the  death  of  the  him  by  the  maker,  but  payable  to 

payee.  the   assignor. 


Sec.  1.]  The  Real  Party  in  Interest.  137 

Phillips,  P.  J.  This  case  presents  the  single  question,  can 
the  assignee  of  a  debt,  secured  by  chattel  mortgage,  without  an 
assignment  of  the  mortgage  itself,  maintain,  in  his  own  name, 
the  action  of  replevin  for  the  recovery  of  the  possession  of  the 
mortgaged  property  ?    The  court  below  held  that  he  could  not. 

At  first  impression  this  question  seems  easily  answered.  But 
in  the  absence  of  any  direct  adjudication  by  our  supreme  court, 
I  find  it,  on  examination  of  the  authorities,  by  no  means  free 
from  embarrassment.  There  is  no  question  of  the  general  prop- 
osition, that  the  assignment  of  the  note  carried  the  mortgage 
with  it.  The  debt  is  the  principal  thing;  the  mortgage,  which 
is  but  the  security,  is  the  mere  incident  of  the  debt ;  and  on  the 
maxim,  omne  principale,  trahet  ad  se  accessorium,  where  the 
debt  goes  the  mortgage  follows.  But  the  courts  say  that  this 
following  of  the  mortgage  after  the  debt,  where  only  the  debt  is 
formally  assigned,  is  but  an  equitable  assignment  as  to  the 
mortgage,  and  not  a  legal  transfer.  Thus  Richardson,  J.,  in  An- 
derson V.  Baumgartner  (27  Mo.  86),  said:  "The  doctrine  is 
well  settled  that  the  transfer  of  a  deed  [debt?]  carries  with  it  in 
equity  the  mortgage  as  a  security."  In  Tisen  v.  People's  Ass'n 
(57  Ala.  331),  Brickell,  C.  J.,  said:  "An  assignment  of  the  debt 
would  in  equity  pass  the  mortgage."  And  likewise,  Wilde,  J., 
in  Grain  v.  Pain  (4  Gush.  485)  treats  the  transfer  of  the  mort- 
gage as  an  incident  of  the  debt,  as  an  equitable  transfer.  Ac- 
cordingly, Jones  in  his  work  on  Ghattel  Mortgages,  section  503, 
asserts  the  doctrine  to  be  that :  ' '  The  mortgagee 's  legal  inter- 
est does  not  pass  by  his  assignment  of  the  debt.  Such  assignee 
cannot  maintain  replevin  in  his  own  name  for  the  mortgaged 
property;  though  he  may  in  the  absence  of  any  express  or  im- 
plied stipulation  to  the  contrary,  bring  such  actions  in  the  name 
of  the  mortgagor,  who  holds,  in  such  case,  the  legal  title  in 
trust  for  such  assignee's  benefit."  In  support  of  the  text,  the 
case  of  Ransdall  v.  Tewksbury  (73  Me.  197)  is  cited.  The  case 
fully  sustains  the  proposition.  The  argument  is,  that  the  in- 
terest of  the  mortgagee  in  the  property  vests  solely  by  virtue 
of  the  mortgage,  which  represents  the  property.  Had  no  mort- 
gage been  taken  he  would  have  had  no  property,  title  or  interest 
whatever  in  the  property.  The  note  in  nowise  had  any  effect 
upon  the  title  to  the  property.  The  whole  office  of  the  note 
being  limited  to  the  payment  of  the  consideration  for  the  prop- 
erty sold  by  the  mortgagee  to  the  mortgagor,  the  assignment  of 


138  Parties  to  Actions.  [Chap.  II. 

the  note  could  not  affect  the  title  to  the  property  it  was  given  to 
pay  for.  The  assignment  of  the  debt  gave  to  the  assignee  an 
equitable  interest,  at  least,  in  the  mortgage,  the  mortgagee  hold- 
ing it  in  trust  for  the  benefit  of  the  holder  of  the  debt.  Such 
equitable  interests  are  protected  by  the  courts  of  law,  and  may 
be  enforced  in  the  name  of  the  party  holding  the  legal,  as  dis- 
tinguished from  the  equitable,  title.  This  seems  to  be  the  hold- 
ing in  Massachusetts  and  Alabama.  Grain  v.  Pain,  supra;  Prout 
V.  Root,  116  Mass.  410 ;  Graham  v.  Rogers,  21  Ala.  498 ;  see  also 
Harman  v.  Barhytt,  31  N.  W.  Rep.  488,  and  note. 

Most  of  the  cases,  which  I  have  been  able  to  find,  where  the 
assignee  was  allowed  to  maintain  the  action  in  his  own  name,  is 
where  the  mortgage  itself  was  assigned  in  writing.     In  such 
case  the  assignee,  without  question,  holds  the  legal  title.     In 
Langdon  v.  Buel  (9  Wend.  80), «  the  action  was  trespass  de  bonis 
asportatis,  brought  in  the  name  of  Langdon,  who  was  the  mort- 
gagee, but  who  had  previously  transferred  the  note,  secured  by 
the  mortgage,  to  one  Pitcher.    Spencer,  C.  J.,  said:    "A  mort- 
gagee of  personal  property,  upon  the  failure  of  the  mortgagor 
to  perform  the  condition  of  the  mortgage,  acquires  an  absolute 
title  to  the  chattel.     The  notes  which  this  mortgage  was  given 
to  secure  appear  to  have  been  assigned  or  transferred  to  one 
Pitcher.     When   they   were   so   transferred   does   not   appear. 
*    *     *     Did  not  the  mortgage  pass  with  the  notes  as  incident 
to  them,  and  should  not  the  action  have  been  brought  in  the 
name  of  Pitcher  instead  of  Langdon?     I  do  not  perceive  how 
such  conclusion  is  to  be  resisted.    A  mortgage  of  real  or  personal 
estate  is  but  an  accessory  or  incident  to  the  debt,  or  the  security 
which  is  given  as  the  evidence  of  the  debt.     The  assignment  of 
the  security  passes  the  interest  in  the  mortgage.    The  mortgage 
can  not  exist  an  an  independent  debt.     If,  by  special  agree- 
ment, it  does  not  accompany  the  security  assigned,  it  is,  ipso 
facto,  extinguished,  and  ceases  to  be  a  subsisting  demand.     If 
the  notes  were  endorsed  or  assigned  to  Pitcher  before  they  be- 
came due  and  before  the  mortgage  was  forfeited,  the  inchoate 
interest  of  the  mortgagee,  must  have  passed  with  them.     If  the 
transfer  of  the  notes  was  after  they  fell  due  and  subsequent  to 
the  forfeiture  of  the  mortgage,  then  the  assignment  operated 

8  This  case  waa  decided  in  1832,      long   before    the    adoption    of   the 

Code. 


Sec.  1,]  The  Real  Party  in  Interest.  139 

as  a  transfer  of  the  interest  of  the  mortgagee,  Langdon,  what- 
ever it  might  have  been,  in  the  mortgaged  chattel ;  and  in  either 
aspect  the  action  of  trespass  should  have  been  brought  in  the 
name  of  Pitcher." 

In  Woodruff  v.  King  (47  Wis.  261),  the  action  was  replevin 
by  an  assignee  of  the  debt ;  and  his  right  to  maintain  the  action 
passed  unchallenged  b}^  counsel  and  court,  with  the  observation, 
that  the  note  being  negotiable,  and  in  the  hands  of  the  plaintiff, 
was  presumptive  evidence  of  ownership;  "and  the  transfer  of 
the  note  carried  with  it  the  mortgage  security,"  citing  Rice  v. 
Cribb  (12  Wis.  182),  in  which  it  is  said:  "The  transfer  of  the 
notes  carries  with  them  the  interest  in  the  mortgage."    *    *    * 

It  seems  to  stand  to  reason  that,  as  the  debt  and  the  security 
are  inseparable,  so  they  cannot  reside  at  the  same  time  in  differ- 
ent parties,  and  he  who  controls  the  debt  also  controls  the  mort- 
gage, the  assignee  of  the  debt  should  acquire  the  same  rights 
and  have  the  same  remedies,  both  as  to  the  debt  and  the  secur- 
ity, which  the  mortgagee, — his  assignor, — had  at  the  time  of  the 
transfer,  or  the  maturity  of  the  debt  had  he  then  held  it.  It  is 
the  well  settled  law  that  the  mortgagee,  after  the  maurity  of  the 
debt,  has  three  independent  remedies  open  to  him,  which  he  may 
pursue  successively.  He  may  reduce  his  debt  to  judgment 
against  the  mortgagor,  or  foreclose  the  mortgage  and  sell  the 
property,  or  bring  an  action  for  the  recovery  of  the  possession. 
That  the  assignee  of  the  debt  may  pursue  in  his  own  name  the 
first  two  remedies,  no  court  questions.  Why,  then,  make  a  dis- 
tinction as  against  the  third  remedy,  and  as  to  that  break  the 
unity  as  to  right  and  remedy?  The  only  answer  made  is,  that 
the  mortgage  is  only  equitably  assigned.  The  same  objection,  it 
occurs  to  me,  might  with  the  same  force  be  alleged  against  the 
foreclosure  proceedings  in  the  name  of  the  assignee.  It  is  con- 
ceded in  Ramsdell  v.  Tewksbury  (supra),  that  such  equitable 
interest  may  be  enforced  in  a  possessory  action  in  the  name  of 
the  assignor — the  mortgagee — to  the  use  of  the  assignee.  Our 
practice  act  (see.  3465)  provides  that,  "everj^  action  shall  be 
prosecuted  in  the  name  of  the  real  party  in  interest,"  allowing 
to  administrators,  executors,  and  trustees  of  express  trusts,  the 
right  of  action  in  their  names.  I  am  unadvised  as  to  whether 
a  corresponding  provision  exists  in  the  statutes  of  Maine,  and 
those  states  maintaining  the  doctrine  in  Ramsdell  v.  Tewksbury. 
But  I  understand  that  one  of  the  very  objects  in  the  enactment 


140  Parties  to  Actions.  [Chap.  II. 

of  this  provision  of  the  code  was  to  obviate  the  useless  form  of 
employing  the  name  of  an  assignor  in  an  action,  who  had  no 
real  interest  in  the  subject-matter  of  litigation,  and  ^vho,  when 
the  judgment  was  obtained  in  his  name,  would  hold  the  same  in 
trust  for  the  benefit  of  the  real  party  in  interest. 

In  City  of  St.  Louis  to  use  v.  Rudolph  (36  Mo.  465),  the 
plaintiff  sued  as  assignee  of  certain  tax  bills  issued  by  the  city 
to  Ursula  Buol.  The  court  said:  "Her  assignment  of  the  bill 
may  be  regarded  as  an  assignment  of  the  cause  of  action,  and  it 
vested  in  him  the  whole  equitable  interest  in  the  demand.  He 
thus  became  the  real  party  in  interest." 

In  Edgell  v.  Tucker  (40  Mo.  531),  the  court  again  seem  to 
recognize  the  principle  that,  where  there  is  an  equitable  assign- 
ment of  the  thing,  the  beneficiary  may  maintain  the  action,  quot- 
ing from  Tindall,  C.  J.,  in  Crowfort  v.  Gurney  (9  Bing.  372), 
— "These  circumstances  amount  to  an  equitable  assignment  of 
the  debt  due  from  Gurney  to  Streather,  for  Solly  might  have 
gone  into  a  court  of  equity  to  compel  a  formal  assignment,  and 
no  answer  could  have  been  given  to  such  an  application. ' ' 

Certainly,  where  a  court  of  equity  would  compel  the  deposit- 
ary of  the  naked  legal  title  to  assign  the  instrument  to  the  as- 
signee, under  our  code,  he  must  be  the  real  party  in  interest. 
And  it  does  seem  to  me  that  the  spirit  and  object  of  the  stat- 
ute will  be  best  expressed  and  executed  in  allowing  this  plain- 
tiff to  proceed  in  his  own  name,  immediately,  to  enforce  his 
possessory  right  under  the  mortgage,  rather  than  to  compel  him 
either  to  resort  to  the  circumlocution  of  a  bill  in  equity  to  com- 
pel an  assignment  of  the  legal  title,  or  to  bring  replevin  in  the 
name  of  the  mortgagee.* 

The  cases  to  which  counsel  for  respondents  refer  in  his  brief 
are  mainly  instances  of  deeds  of  trust  on  real  estate  made  to  a 
trustee.  In  such  case  the  legal  title  is  vested  in  the  trustee, 
mutually  selected  by  the  parties  as  such  depositary,  to  hold  in 
trust  for  both  parties.  His  is  a  naked  power,  not  transferable, 
and  he  alone  can  maintain  action  for  the  possession.  Pickens  v. 
Jones,  63  Mo.  199 ;  Siemers  v.  Shraeder,  84  Mo.  20-23 ;  Meyers 
V.  Hale,  17  Mo.  App.  205. 

9  Accord:      Bank  v.  Eagsdale,  158  170  Pac.  1009  (Wash.  1918),  allow- 

Mo.     668     (1900),     approving     the  ing   the    assignee   of   a   pay   check 

principal  case.   See  also  Nat'l  Mar-  to  sue  on  a  surety  bond  given  to 

ket  Co.  V.  Maryland  Casualty  Co.,  secure  workmen  subcontractors,  etc. 


Sec.  1.]  The  Real  Party  in  Interest.  141 

It  follows  that  the  judgment  of  the  circuit  court  is  reversed 
and  the  cause  remanded.     All  concur. 


BAILEY  V.  WINN. 

Supreme  Court  of  Missouri,  1890.     101  Mo.  649. 

Ejectment  for  certain  lands  in  Macon  county.  On  writ  of 
error  by  defendant  to  reverse  the  judgment  below  in  favor  of 
plaintiff. 

Black,  J.^"  *  *  *  The  second  alleged  title  of  the  plaintiff 
is  this :  Edward  Edwards  and  his  wife,  by  their  mortgage  deed, 
dated  January  11,  1871,  conveyed  the  one  hundred  and  twenty 
acres  of  land  to  David  W.  Williams,  to  secure  a  note  of  the  same 
date,  executed  by  Edwards  and  payable  to  Williams  for  six 
hundred  and  seventy  dollars,  due  in  two  years.  David  W.  Wil- 
liams acknowledged  satisfaction  in  full  on  the  margin  of  the 
record,  under  date  of  August  13,  1879.  Plaintiff,  however, 
produced  in  evidence  the  note  with  two  assignments  indorsed 
thereon,  one  from  Williams  to  Edward  A.  Edwards  and  the 
other  from  him  to  plaintiffs.  Edward  A.  Edwards  testified  that 
he  had  purchased  this  note  from  Williams  on  Aug.  9,  1879,  and 
had  it  assigned  to  himself  on  that  day,  and  that  the  marginal 
satisfaction  was  made  without  his  knowledge  or  consent,  and 
after  he  had  become  the  owner  of  the  note.  He  says  he  had 
previously  contracted  for  the  note,  had  made  several  payments, 
and  that  the  payment  of  $206.20,  on  Aug.  9,  was  the  last  one. 
Concede  that  Edward  A.  Edwards  became  the  owner  of  the  note 
by  assignment,  and  that  he  assigned  it  to  plaintiff,  still  we  do 
not  see  how  the  plaintiff  can  recover  in  this  action  of  ejectment 
on  the  mortgage.  There  is  no  doubt  but  a  mortgagee,  after  con- 
dition broken,  may  recover  in  ejectment  against  the  mortgagor 
and  those  claiming  under  him.  Sutton  v.  Mason,  38  Mo.  120 ; 
Johnson  v.  Houston,  47  Mo.  230.  The  assignment  of  the  debt 
carries  the  security,  so  that  the  assignee  may  foreclose  the  mort- 
gage. But  the  mortgagee  may  recover  in  ejectment,  because, 
after  condition  broken,  he  is  in  law  regarded  as  the  owner  of 

10  statement  condensed  and  part  of  opinion  omitted. 


X42  Parties  to  Actions.  [Chap.  II. 

the  estate.  The  legal  title  vests  in  him  for  the  protection  of  the 
debt,  but  for  no  other  purpose.  Before  the  assignee  of  the  debt 
can  recover  in  ejectment,  he  must  show  a  transfer  of  this  legal 
estate  to  himself.  We  have  held  that  the  beneficiary  in  a  deed 
of  trust  to  secure  the  payment  of  a  debt  cannot  maintain  eject- 
ment, after  condition  broken.  Siemers  v.  Shrader,  88  Mo.  20. 
So  in  the  case  of  an  ordinary  mortgage,  the  mere  assign- 
ment of  the  debt  does  not  vest  the  title  of  the  mortgagee  to  the 
land  in  the  assignee.  Jones  on  Mortgages  (4th  ed.)  see.  818. 
In  the  present  case,  there  was  no  assignment  of  the  mortgage 
or  transfer  of  the  estate  by  the  mortgagee,  and  it  follows  from 
what  has  been  said  that  plaintiff  cannot  recover  on  the  mortgage, 
even  if  he  is  the  owner  and  holder  of  the  note.^    *    *    * 

The   judgment   is   reversed   and   the   cause   remanded.      All 
concur. 


ALLEN  V.  CHICAGO  &  NORTHWESTERN  RY.  CO. 

Supreme  Court  of  Wisconsin,  1896.    94  Wis.  93. 

The  action  is  for  a  negligent  fire  which  burned  a  quantity  of 
hay  belonging  to  the  plaintiff.  The  answer  alleges  that  the  hay 
was  insured  against  fire,  and  that  the  insurer  has  paid  the  loss 
in  full  to  the  plaintiff.     The  plaintiff  demurred  to  this  answer 

1  And  so  in  Williams  v.  Teachy,  use  the  name  of  the  mortgagee  in 

85  N.  C.  402,   (1881),  that  the  as-  enforcing   any   remedies   which   by 

signment   of  a  note  and  mortgage  law    can    be    made    available    for 

did  not  pass  the  mortgagees'  legal  that     purpose.       He     might     bring 

title   to   the   land.  ejectment  in  the  name  of  the  mort- 

Dickey,  J.,  in  Kilgour  v.   Gock-  gagee,  and  the   assignment   of  the 

ley,   83   111.   109,    (1876):      *     *      *  note    and    mortgage    would    be    a 

"Though  the   assignee   of  a  mort-  full  authority  for  such  use  of  the 

gage,   and  of  the   note   secured  by  name  of  the  mortgages,  and,  after 

the  mortgage,  may  not  be  able  to  judgment  in  such  ejectment  in  his 

maintain  an  action  upon  the  mort-  favor  and   against  the   mortgagor, 

gage,  in  his  own   name,  by  virtue  the  assignee  of  the  mortgage  could 

of    such    assignment,    nevertheless,  lawfully    accept    the    possession   in 

being    the    lawful    owner    of    the  the  name  of  the  mortgagee,  acting 

note,   he   has   the   right   to   use   all  as  the  agent  of  the  mortgagee  and 

remedies  necessary   for  the  collec-  for  his   own  benefit."      *      *     * 
tion   of   it,    and   has   the   right   to 


Sec.  1.]  The  Real  Party  in  Interest.  143 

as  not  stating  a  defense.    The  demurrer  was  sustained,  and  the 
defendant  appeals. 

Newman,  J.  The  plaintiff,  in  his  brief,  denies  that  he  has 
been  paid  his  loss  by  the  insurer.  In  that  case  it  was  imprudent 
in  him  to  demur  to  the  ansM^er,  for  by  his  demurrer  he  ad- 
mits all  the  material  allegations  of  the  answer  to  be  true. 
This  is  elementary.  It  is  the  settled  law  in  this  state  that 
the  acceptance  of  payment  of  his  loss  from  the  insurer  sub- 
stituted the  insurer  in  all  his  rights  against  the  railroad 
company.  It  put  the  insurance  company,  in  all  respects,  into 
the  place  which  he  occupied  in  relation  to  his  claim  against 
the  railroad  company,  so  that  it  can  bring  suit  against  the  rail- 
road company,  upon  his  original  cause  of  action,  in  its  own 
name.  Swarthout  v.  C.  &  N.  W.  R.  Co.,  49  Wis.  625.  All  this 
is  utterly  inconsistent  with  any  theory  that,  in  a  case  where  the 
whole  loss  is  paid  by  the  insurer,  any  right  of  action  remains  in 
the  insured  ;2  nor  can  he,  by  any  act,  defeat  the  right  of  such 
insurer.  The  acceptance  of  payment  from  the  insurer  operates 
as  a  virtual  assignment  of  the  cause  of  action  to  the  insurer, 
and  a  part  payment  operates  as  an  assignment  pro  tanto.^  Pratt 
V.  Radford,  52  Wis.  114.  Else  the  defendant  might  be  called 
upon  to  pay  twice,  and  the  insured  might  recover  twice,  for  the 
amount  of  his  loss.  This  leads  to  absurdity.  In  this  state  no 
action  could  be  brought  in  the  plaintiff's  name  for  the  benefit 
of  the  insurer.*    Every  action  must  be  brought  in  the  name  of 

2  Contra:      111.     Central    Ey.     v.  insurer  cannot   sue  alone,  Norwich 

HickUn,    131    Ky.    624,    115    S.    W.  Ins.    Co.    v.    Standard    Oil    Co.,    59 

752,  23  L.  E.  A.  (N.  S.)  870,  (1909)  Fed.   984,    (1804).      For    a   joinder 

annotated;    Alaska    S.    S.    Co.    v.  by    the    insured    and    the    insurer, 

Sperry,  94  Wash.  227,  (1909).     See  see    note    to    Cable    v.    Dock    Co., 

also  Swift  V.  Wabash  Ey.  149  Mo.  ante  p.   127. 

App.   526,    (1910),   in   which   a   re-  4  Accord:    Cunningham  v.  Ey.  139 

eovery   was   allowed    in   the    name  N.    C.    427,    (1905);    Ey.   v.   Blunt, 

of  the  owner,  though  the  loss  had  165   Fed.   258,    (1908);    Ins.   Co.   v. 

been  paid  in  full  by  several  sepa-  Great    Lakes    Co.    184    Fed.    426, 

rate   insurers,   on  the   ground   that  (1911).     A    number    of    the    later 

the  claim  of  each  to  a  proportional  cases   are  collected  in  the  note  to 

part    was    purely    equitable.      The  Wyker  v.  Texas  Co.  L.  E.  A.  1918 

same     state     of    facts     existed    in  F.    142.      See    also    Lord    v.    Tale, 

Cunningham  v.  Ey.  139  N.  C.  427,  230    N.    Y.    132,    (1920),    that    the 

(1905),    but    the    point    was    not  insured     has     no     interest     which 

raised.  makes  it  proper  to  join  him  as  a 

8  Where    the    insurance    is    less  co-plaintiff  with   the  insurer, 
than  the  amount   of  the   loss,  the 


144  Parties  to  Actions.  [Chap.  11 

the  real  party  in  interest.  The  answer,  while  undoubtedly  suf- 
ficient in  substance,  sets  out  the  defense  but  meagerly  and  with- 
out detail.  It  could  not  be  gathered  from  it  who  the  insurer  is, 
nor  how  much  was  paid.  Much  which  might  become  important 
is  absent.  But,  if  the  plaintiff  desired  more  certainty  of  state- 
ment, his  remedy  was  by  a  motion  for  that  purpose. 

By  the  Court. — The  order  of  the  circuit  court  is  reversed,  and 
the  cause  remanded  with  direction  to  overrule  the  demurrer. 


HOFFMAN  V.  CITY  OF  COLUMBIA. 
Court  of  Appeals  of  Missouri,  1898.    76  Mo.  App.  553. 

Smith,  P.  J.  This  is  an  action  by  the  plaintiff  against  de- 
fendant, a  city  of  the  third  class,  to  recover  damages  occasioned 
by  the  action  of  the  latter  in  changing  the  grade  of  certain 
designated  streets  in  front  of  the  property  of  the  former,  in 
pursuance  of  an  ordinance  passed  for  that  purpose.  At  the  time 
of  the  passage  of  the  ordinance  Mrs.  Riggins  was  the  owner  in 
fee  of  the  property  and  between  that  time  and  the  change  of  the 
grade  of  said  streets,  she  entered  into  a  written  contract  with 
the  plaintiff  for  the  sale  of  the  property  and  the  execution  of  a 
deed  therefor.  The  deed  was  not  executed  until  a  few  days 
after  the  completion  of  the  street  improvement.  The  evidence 
abundantly  shows  that  the  property  was  greatly  damaged  by  the 
grading  of  the  streets.  There  was  a  trial  resulting  in  judgment 
for  the  plaintiff  and  the  defendant  appealed. 

The  defendant  contends  that  inasmuch  as  the  plaintiff  was 
a  mere  vendee  under  an  executory  contract  of  sale  that  he  was 
not  such  an  owner  of  the  property  as  entitled  him  to  recover 
damages  for  injuries  done  thereto,  prior  to  the  time  of  the  de- 
livery of  the  deed  to  him.  Our  Practice  Act — Revised  Statutes 
1889,  section  1990, — requires  that  every  action  shall  be  pros- 
ecuted in  the  name  of  the  real  party  in  interest.  The  question 
here  is,  who  was  the  real  party  in  interest  at  the  time  of  the 
injury  to  the  property? 

Snyder  v.  Murdock,  51  Mo.  175,  was  where  defendant  had 
given  his  notes  for  real  property  and  the  plaintiff  had  given 
bond  for  title.     The  carding  machine  and  mill  situate  on  the 


Sec.  1.]  The  Real  Party  in  Interest.  145 

property  were  destroyed  by  fire  before  the  payment  of  the  notes 
or  the  making  of  the  deed.  In  a  suit  on  the  notes  the  defendant 
pleaded  as  a  defense  that  the  carding  machine  and  mill  gave  the 
property  great  value  and  were  the  main  inducement  to  the  pur- 
chase, etc.  In  the  course  of  the  opinion  in  the  case,  it  is  said 
that:  "After  an  executory  contract  for  a  conveyance  of  real 
estate  has  been  entered  into  by  the  execution  of  a  bond  for  title 
and  notes  for  the  purchase  money,  the  property  is  at  the  risk  of 
the  purchaser.  If  it  burns  up,  it  is  his  loss;  if  it  increases  in 
value,  it  is  his  gain.  This  is  the  settled  equity  doctrine,  and  is 
based  upon  the  principle  that  in  equity  what  is  agreed  to  be 
done  must  be  considered  as  done." 

In  Walker  v.  Owen,  79  Mo.  loc.  cit.  569,  the  defendant,  under 
a  title  bond,  took  possession  of  the  premises.  There  was  on  the 
lot  a  store  house  of  which  the  defendant  took  possession,  under 
his  contract,  and  used  the  same  for  several  months  and  was  so 
using  it  when  it  burned  down.  It  is  said  by  the  court,  in  de- 
ciding the  case,  "that  when  a  vendee  thus  takes  possession  of 
real  estate,  under  a  title  bond,  from  the  vendor,  and  the  im- 
provements thereon  are  destroyed,  the  loss  falls  on  the  vendee. ' ' 
Snyder  v.  Murdock,  51  Mo.  175.  The  defendant  is  not  in  a 
position  to  rescind  the  sale  if  he  desired,  for  he  cannot  put  the 
vendor  in  statu  quo  by  restoring  to  him  the  property  he  ob- 
tained from  him.  See,  also,  Deland  v.  Vanstone,  26  Mo.  App. 
297 ;  Woods  V.  Straup,  63  Mo.  433 ;  Tatum  v.  Brooker,  51  Mo. 
148. 

It  has  been  twice  held  by  the  supreme  court  of  Michigan 
that  where  persons  holding  lands  under  a  contract  for  sale 
which  does  not  give  them  any  possessory  right  therein  before 
completion  of  payment  therefor,  cannot,  before  such  payment, 
maintain  an  action  for  damages  done  to  such  land,  since  they 
are  not  the  owners  of  the  freehold.  Moyer  v.  Scott,  30  Mich. 
345 ;  Des  Jardins  v.  Boom  Co.,  54  N.  W.  Rep.  718.  It  does  not 
appear,  from  the  meager  statement  made  in  Snyder  v.  Murdock, 
supra,  whether  or  not  the  vendee  was  put  in  the  actual  pos- 
session of  the  property,  but  it  may  be  fairly  inferred  that  such 
was  the  fact.  That  is  the  way  it  is  to  be  understood.  Walker 
V.  Owen,  supra. 

It  appears  from  the  contract  of  sale  that  Mrs.  Riggins  should 
reserve  in  her  deeds  the  rents,  issues  and  profits  of  said  prop- 
erty up  to  July  1,  1897 — more  than  six  months  after  the  date 


146  Parties  to  Actions.  [Chap.  II 

of  the  injury — and  that  the  plaintiff  should  not  disturb  the 
tenant  in  possession  until  the  last-named  date.  It  is  thus  seen 
that  the  plaintiff,  at  the  time  of  the  spoliation  of  the  property, 
of  which  he  complains,  was  not  then  in  either  the  actual  or  con- 
structive possession.  Though  the  plaintiff  had  only  a  contract 
for  the  conveyance  to  him  of  the  title  to  the  property,  yet  the 
action  could  have  been  maintained  by  him  if  he  had  been  placed 
in  the  actual  possession  thereof  by  his  vendor.  There  is  nothing 
in  the  contract  which  had  the  effect  to  make  the  subsequent 
deed  operate  by  relation  back  to  the  date  of  the  contract.  The 
plaintiff,  by  the  terms  of  the  former,  was  not  entitled  to  the  lat- 
ter, until  he  made  the  payment  of  a  certain  amount  of  the  pur- 
chase money  and  secured  the  remainder  thereof  in  either  one  of 
the  two  ways  stipulated.  And  as  the  land  was  not  paid  for, 
and  the  plaintiff  could  not  have  possession  until  after  payment 
of  part  of  the  purchase  money,  the  giving  of  the  stipulated 
securities  for  the  deferred  payments,  it  is  plain  that  the  vendor 
had  a  valuable  interest  therein  and  not  a  mere  naked  title,  and 
that  an  injury  to  the  land  was  an  injury  to  her.  We,  therefore, 
conclude  that  the  plaintiff  was  not  the  real  party  in  interest, 
in  the  statutory  sense,  and  the  action  was  improperly  prosecuted 
m  his  name.  It  results  that  the  demurrer  to  the  evidence,  in- 
terposed by  the  defendant,  should  have  been  sustained.^ 

As  the  ruling  just  made  is  decisive  of  the  cases  on  the  merits, 
it  becomes  wholly  unnecessary  to  notice  the  question  of  the  suf- 
ficiency of  the  defense  pleaded  by  the  answer  and  stricken  out 
by  the  trial  court  on  the  motion  of  the  plaintiff. 

Judgment  reversed. 


5  For  a  collection  of  later  eases  in  possession,   because  the  equitable 

on   this   point,   see   note   to   Foster  title    and    possession    were    in    the 

V.  Lumber  Co.,  20  Okla.  553  (1908),  latter. 

30  L.  E.  A.   (N.  S.)   231.     For  the  Compare   Barker  v.   Birkbeck,  1 

right   of  the  vendor  see   Northrup  Wm.  Blackstone,  482    (1764)   hold- 

V.   Trask,   39   "Wis.    515,    (1876)    in  ing     that     an     equitable     assignee 

which  it  was  held  that  the  vendor  of    a    lease,    in    possession    of    the 

could  not   maintain   an   action   for  premises,    could   maintain    trespass 

the   conversion   of   a  building  sev-  against  a  stranger  for  the  removal 

ered   and   removed   by   the   vendee  and  conversion  of  coal. 


Sec.  1.]  The  Real  Pakty  in  Interest.  147 

STILWELL  V.  HURLBURT. 

Court  of  Appeals  of  New  York,  1858.     18  N.  Y.  374. 

Appeal  from  the  supreme  court.  Action  upon  a  bond  to  the 
plaintiff,  sheriff  of  Oswego,  reciting  the  issuing  of  an  execution 
directed  to  the  plaintiff  against  one  Eri  D.  Harrington,  and 
that  certain  goods  and  chattels  which  appeared  to  belong  to  the 
latter  were  claimed  by  Wm.  H.  Harrington  and  conditioned  to 
indemnify  the  plaintiff  and  all  persons  aiding  or  assisting  him 
in  the  premises,  from  all  damages  for  levying  upon  and  selling 
the  property.  The  breach  was  the  recovery,  by  one  Capron,  of  a 
judgment  against  Lee,  a  deputy  of  the  plaintiff,  for  the  seizure 
and  sale  by  the  latter  of  the  property  levied  upon;  the  pay- 
ment by  Lee  of  the  judgment  and  costs  of  defending  the  action 
in  which  it  was  recovered,  and  the  neglect  of  the  defendants  to 
indemnify  Lee.  The  complaint  stated  an  assignment  by  Lee, 
to  the  plaintiff,  of  his  interest  in  the  bond  and  of  his  right  of 
action,  by  reason  of  the  facts  stated.  Upon  the  trial  there  was  a 
failure  to  prove  that  the  assignment  was  ever  delivered  to  the 
plaintiff,  or  that  he  knew  of  its  existence.  The  defendants 
moved  for  a  non-suit,  which  was  denied.  The  plaintiff  had  a 
verdict,  which  the  supreme  court,  at  general  term  in  the  fifth 
district,  refused  to  set  aside ;  and  judgment  thereon  having  been 
perfected,  the  defendants  appealed  to  this  court. 

Harris,  J.  At  the  time  the  bond  upon  which  this  action  is 
brought  was  executed,  the  plaintiff  w^as  sheriff  of  Oswego  and 
Lee  was  his  deputy.  An  execution  in  favor  of  the  defendant 
against  one  Harrington,  had  been  delivered  to  Lee  as  such  dep- 
uty, and  property  in  the  possession  of  the  defendant  in  the  ex- 
ecution had  been  seized  by  him.  To  induce  the  deputy  to  sell 
the  property  thus  taken  in  execution,  and  which  might  belong 
to  some  other  person,  the  defendants,  who  were  plaintiffs  in 
the  execution,  executed  the  bond  in  question.  Aware  that  any 
person  claiming  the  property  which  had  been  taken  might,  at 
his  election,  sue  either  the  sheriff  or  his  deputy,  it  was  made  a 
condition  of  the  bond,  that  the  defendants  should  indemnify 
not  only  the  sheriff,  but  "all  and  every  person  and  persons  aid- 
ing and  assisting  him  in  the  premises."  In  respect  to  the  dep- 
uty who  held  the  execution,  and  who  in  fact  received  the  bond, 
the  plaintiff  became  the  trustee  of  an  express  trust.    The  obliga- 


148  Parties  to  Actions.  [Chap.  II. 

tion  was  executed  to  him  for  the  benefit®  of  his  deputy.  It  is 
the  precise  case  for  which  provision  is  made  in  the  113th  section 
of  the  code.  The  suit  was  properly  brought  in  the  name  of  the 
sheriff.  The  deputy  having  been  sued  for  the  price  of  a  wagon 
he  had  sold  under  the  defendant's  execution,  and  a  judgment 
having  been  recovered  against  him,  the  defendants  became  liable, 
according  to  the  condition  of  their  bond,  for  the  amount  recov- 
ered against  him,  together  with  the  expenses  incurred  by  him  in 
defending  the  action.  Without  reference,  therefore,  to  the  as- 
signment of  the  demand  to  the  plaintiff,  or  whether  such  an 
assignment  was  perfected  or  not,  the  action  was  well  brought 
and  the  recovery  right. 

The   judgment   of  the   supreme   court  should   therefore   be 
affirmed. 


BURR  V.  BEERS. 

Court  of  Appeals  of  New  York,  1861.    24  N.  Y.  178. 

Appeal  from  a  judgment  of  the  Supreme  Court.  The  action 
was  brought  to  recover  the  amount  of  two  mortgages  executed, 
with  his  bonds,  by  E.  F.  Bullard  to  John  Cramer,  committee 
of  the  estate  of  Charles  Burr  (the  plaintiff's  intestate),  for 
$1,000  and  $2,000  respectively.  After  giving  the  mortgages,  which 
covered  several  parcels  of  lands,  Bullard  conveyed  both  parcels  to 
the  defendants  by  a  deed  containing  a  recital  and  covenant  in  the 
following  words :  ' '  Subject  to  two  mortgages  held  by  John  Cram- 
er, committee  of  the  estate  of  Charles  Burr,  bearing  date,  etc., 
(describing  the  mortgages),  which  mortgages  are  deemed  and 
taken  as  a  part  of  the  consideration  of  this  conveyance,  and 
which  the  party  of  the  second  part  hereby  assumes  to  pay." 
Charles  Burr  was  restored  to  the  possession  and  control  of  his 

6  The    general    subject    of    eon-  cases    on    that    phase    of   the    law 

tracts    for    the    benefit     of    third  in    this    collection    are    suggestive 

persons,  and  the  effect  of  the  Code  merely.     For    a   discussion    of   the 

in   developing  that  branch   of  the  matter  from  the  standpoint  of  the 

law,   can   not  be  treated  satisfac-  law  of  contracts,  see  an  article  by 

torily   in    a   course   primarily   con-  Professor   Williston,   15   Har.   Law 

cerned   with   procedure.     The   few  Eev,  767. 


Sec.  1.]  The  Keal  Party  in  Interest.  149 

estate,  by  an  order  of  the  Supreme  Court;  and  he  prosecuted 
this  suit  to  judgment,  but  died  pending  this  appeal,  when  the 
action  was  continued  in  the  name  of  the  plaintiff  as  his  admin- 
istratrix. The  plaintiff  on  the  trial  proved  the  actual  delivery 
of  the  deed  by  Bullard,  to  the  defendant.  The  defendant  ob- 
jected that  there  was  no  privity  of  contract  between  him  and 
the  plaintiff;  but  the  justice  (before  whom  the  case  was  tried 
without  a  jury)  held  otherwise.  Judgment  was  given  for  the 
plaintiff  for  the  amount  of  the  mortgages,  which  was  affirmed 
at  a  general  term  when  the  defendant  appealed  to  this  court. 

Denio,  J.  If  the  plaintiff  had  sought  to  foreclose  the  mort- 
gages in  question,  and  to  charge  the  defendant  with  the  defi- 
ciency which  might  remain  after  applying  the  proceeds  of  the 
sale,  and  had  made  both  the  mortgagor  and  the  present  defend- 
ant parties,  the  authorities  would  be  abundant  to  sustain  the 
action  in  both  aspects.  (Curtis  v.  Tyler,  9  Paige  432;  Halsey 
V.  Reed,  id.  446 ;  March  v.  Pike,  10  id.  595 ;  Blyer  v.  Monhol- 
land,  2  Sandf.  Ch.  R.  478;  King  v.  Whitely,  10  Paige  465; 
Trotter  v.  Hughes,  2  Kern.  74;  Vail  v.  Foster,  4  Comst.  312; 
Belmont  v.  Coman,  22  N.  Y.  438.)  But  I  do  not  understand 
that  the  right  to  a  personal  judgment  for  the  deficiency  is  based 
upon  the  notion  of  a  direct  contract'  between  the  grantee  of  the 

7  Mr.  Justice  Gray  in  Union  Life  in  its  organization,  sought  to  re- 
Ins.  Co.  V.  Hanford,  143  U.  S.  187  cover  his  charges  in  an  equitable 
(1891):  *  *  *  "By  the  settled  proceeding  winding  up  the  corn- 
law  of  this  court,  the  grantee  is  pany,  basing  his  claims  on  a  con- 
not  directly  liable  to  the  mort-  tract  between  the  promoter  and 
gagee,  at  law  or  in  equity;  and  the  the  company  by  which  the  latter 
only  remedy  of  the  mortgagee  agreed  to  pay  such  expenses.  The 
against  the  grantee  is  by  bill  in  plaintiff  was  denied  relief,  appar- 
equity  in  the  right  of  the  mort-  ently,  because  of  setoffs  in  favor 
gagor  and  grantor,  by  virtue  of  of  the  company  against  the  pro- 
the  right  in  equity  of  a  creditor  meter.  On  the  question  of  direct 
to  avail  himself  of  any  security  liability  Lord  Justice  Lindley  ob- 
which    his    debtor    holds    from    a  served: 

third    person    for    the    payment   of  "If  he  had  brought  this  action 

the   debt.     Keller  v.   Ashland,   133  against  the  company  with  no  mate- 

U.   S.   610;    Willard   v.   Wood,    135  rials    except    proof    that    he    had 

U.  S.  309.     *     *      *"  done   the   business,   and   the  provi- 

In  the  case   of  In  re  Eotheram  sions  in  the  articles,  he  could  not 

Alum    Co.,    L.    E.    25    Ch.    D.    103,  have  succeeded.     This  is  shown  by 

(1883),   a   solicitor   who   had   been  many  cases,  amongst  which  I  may 

employed    by    the    promoter    of    a  refer   to  Eley  v.   Positive   Govern- 

corporation  and  performed    services  ment  Security  Life  Assurance  Com- 


150  Parties  to  Actions.  [Chap.  II. 

equity  of  redemption,  and  the  holder  of  the  mortgage.  The 
eases  proceed  upon  the  principle,  that  the  undertaking  of  the 
grantee  to  pay  off  the  incumbrance  is  a  collateral  security  ac- 
quired by  the  mortgagor,  which  inures  by  an  equitable  subroga- 
tion to  the  benefit  of  the  mortgagee.  Then  the  statute  relating 
to  foreclosures  provides,  that  if  the  mortgage  debt  be  secured  by 
the  obligation  or  other  evidence  of  debt  executed  by  any  other 
person  besides  the  mortgagor,  such  person  may  be  made  a  de- 
fendant, and  may  be  decreed  to  pay  the  deficiency.  (2  R.  S. 
p.  191,  §  154.)  Chancellor  "Walworth,  puts  the  right  to  a  per- 
sonal judgment  in  such  a  case,  upon  the  equity  of  this  statute 
(9  Paige  432)  ;  and  Vice-Chancellor  Sanford,  expressly  says, 
that  the  obligation  is  not  enforced  as  being  made  by  the  grantee 
of  the  equity  of  redemption  under  such  a  deed,  to  the  mortgagee, 
but  as  a  promise  by  the  former  to  the  mortgagor,  to  pay  him  the 
amount  of  the  mortgage,  by  paying  it  to  the  mortgagee  in  pay- 
ment of  his  debt,  which  promise  the  mortgagee  is  equitably  en- 
titled to  lay  hold  of  and  enforce  under  the  equity  of  the  statute 
referred  to.  (2  Sandf.  Ch.  R.  480.)  It  is  obvious,  that  the 
judgment  of  the  Supreme  Court  in  the  present  case,  cannot  be 
sustained  upon  the  doctrine  referred  to.  The  plaintiff  does  not 
?isk  to  foreclose  the  mortgage  and  does  not  make  the  principal 
debtor  Bullard,  a  party.  If  the  judgment  can  be  supported  at 
all,  it  must  be  upon  the  broad  principle  that  if  one  person  make 
a  promise  to  another,  for  the  benefit  of  a  third  person,  that  third 
person  may  maintain  an  action  on  the  promise.  Upon  that  ques- 
tion there  has  been  a  good  deal  of  conflict  of  judicial  opinion. 
As  long  ago  as  1817,  Chancellor  Kent,  laid  it  down  as  a  point 
decided,  and  referred  to  not  less  than  eight  English  and  Amer- 
ican cases,  as  sustaining  the  principle.  (Cumberland  v.  Codring- 
ton,  3  J.  C.  R.  255)  ;  and  since  then  it  has  been  frequently  af- 
firmed by  judges,  after  an  attentive  examination  of  cases,  as 

pany    (1   Exch.   D.   20,   88),   where  a  statute  being  a  well  known  old 

is  was   held  that   articles  of  asso-  form   of   action   at   Common  Law; 

elation    do    not    constitute    a    con-  but  an  agreement  between  A.  and 

tract  between  the  company  and  an  B.   that  B.   shall   pay   C,   gives   C. 

outsider.      A    provision   in    an    act  no    right    of   action    against   B.      1 

of  Parliament  may  enable  an  out-  cannot    see   that   there   is   in    such 

sider    to    sue.      There    is    in    such  a     case     any     difference     between 

cases    a    statutory     obligation     of  Equity  and  Common  Law,  it  is   a 

■^hich  the  person  named  can  take  mere   question   of   contract." 
the  benefit — an  action  for  debt  on 


Sec.  1.]  The  Real  Pakty  in  Interest.  151 

in  Barber  v.  Bucklin  (2  Denio  45),  and  in  the  cases  therein  re- 
ferred to.  These  cases,  and  also  those  referred  to  by  Chancellor 
Kent,  are  doubtless  subject  to  some  of  the  criticisms  which  have 
since  been  applied  to  them.  Some  of  the  opinions  were  pure 
obiter  dicta,  and  in  others,  the  cases  though  presenting  the 
point  were  decided  upon  other  grounds.  It  cannot  however  be 
denied,  that  the  doctrine  had  been  so  often  asserted,  that  it  had 
become  the  prevailing  opinion  of  the  profession,  that  an  action 
would  lie  in  such  a  case  in  the  name  of  the  creditor,  for  whose 
benefit  the  promise  was  made.^  Finally  the  question  came 
squarely  before  this  court  in  Lawrence  v.  Fox  (20  N.  Y.  268), 
and  we  held,  with  hesitation  on  a  part  of  the  portion  of  the 
judges  who  concurred,  while  others  dissented,  that  the  action 
would  lie.  We  must  therefore  regard  the  point  as  definitely 
settled,  so  far  as  the  courts  of  this  State  are  concerned. 

The  judgment  appealed  from  being  in  accordance  with  the 
law  as  adjudged  in  that  case,  must  be  affirmed. 


SCHAEFER  v.  HENKEL. 
Court  of  Appeals  of  New  York,  1878.     75  N.  Y.  378. 

Appeal  from  judgment  of  the  General  Term  of  the  Court  of 
Common  Pleas,  affirming  a  judgment  in  favor  of  defendant, 
entered  upon  an  order  dismissing  complaint  on  trial. 

This  action  was  upon  a  lease  under  seal  of  certain  premises 
in  New  York,  which  lease  was  executed  by  "J.  Romaine  Brown, 
agent, ' '  as  lessor  and  by  defendant  as  lessee. 

The  facts  appear  sufficiently  in  the  opinion. 

Miller,  J.^  The  plaintiffs  were  not  parties  to  the  lease  upon 
which  the  action  was  brought.  It  was  not  signed  by  them. 
Their  names  did  not  appear  in  it,  and  there  was  nothing  in  the 
lease  to  show  that  they  had  anything  to  do  with  or  any  interest 

8  The    same    problem    frequently  the  mortgagor  was  bound  to  insure 

arises    where    the    mortgagor    has  for  benefit  of  the  mortgagee.)    For 

insured,  loss  payable  to  the  mort-  the   view   that   such    a   loss   clause 

gagee.      That    the    mortgagee   may  did  not  make  the  contract  one  for 

sue  on  the  policy,  see  Cone  v.  Ins.  the   benefit   of   the   mortgagee,   see 

Co.,    60    N.    Y.    619;    Palmer    Sav.  Williamson  v.  Ins.  Co.,  86  Wis.  393. 

Bk.  V.  Ins.  Co.,  166  Mass.  189;  Ins.  9  Part   of   the   opinion   omitted. 
Co.   V.   Olcott,   97    111.   439    (where 


152  Parties  to  Actions.  [Chap.  II. 

in  the  demised  premises  or  the  execution  of  the  lease,  or  that 
it  was  executed  in  their  behalf.  It  was  made  by  one  Brown,  as 
lessor,  who  is  described  therein,  and  who  signed  it,  as  agent; 
but  it  is  not  stated  in  the  lease  for  whom  he  acted.  The  cove- 
nants are  all  between  "J.  Romaine  Brown,  agent,  the  party  of 
the  first  part, ' '  and  the  defendant,  as  party  of  the  second  part ; 
and  it  is  not  made  to  appear  that  the  defendant  had  any  knowl- 
edge or  intimation  whatever  that  Brown  was  acting  on  behalf 
of  the  plaintiffs  or  for  their  benefit.  For  whom  Brown  was 
agent  was  not  made  known  to  the  defendant,  and  it  only  appears 
by  parol  proof  upon  the  trial  that  Brown  was  authorized  orally 
by  the  plaintiffs  to  make  a  demise  of  the  premises  described  in 
the  lease.  The  signature  of  Brown  is  as  agent,  and  his  seal  is 
attached  to  the  instrument,  and  the  same  is  also  signed  and 
sealed  by  the  defendant.  The  plaintiffs,  without  any  assignment 
of  Brown's  interest  under  the  lease,  bring  this  action  to  recover 
the  rent  unpaid,  upon  the  ground  that  Brown  merely  acted  as 
their  agent  by  their  authority,  and  that  they  are  the  actual  par- 
ties in  interest.  The  question  to  be  determined  is  whether  the 
actual  o^\Tiers  of  the  lease,  which  is  in  the  nature  of  a  deed  i7iter 
partes,  which  was  not  and  does  not  on  its  face  show  that  it  was 
executed  by  them,  but  which  does  show  an  execution  by  a  third 
person,  claiming  to  act  as  agent  without  disclosing  the  name  of 
his  principal,  and  which  contains  covenants  between  the  parties 
actually  signing  and  sealing  the  same,  can  maintain  an  action 
upon  it  for  the  rent  reserved  therein,  even  although  the  person 
who  executed  the  same,  describing  himself  "agent  and  party  of 
the  first  part,"  had  oral  authority  to  enter  into  the  contract, 
and  acted  as  the  owner's  agent  in  the  transaction.  The  rule 
seems  to  be  quite  well  established,  that  in  general  an  action  upon 
a  sealed  instrument  of  this  description  must  be  brought  by  and 
in  the  name  of  a  person  M'ho  is  a  party  to  such  instrument,  and 
that  a  third  person  or  a  stranger  to  the  instrument  cannot  main- 
tain an  action  upon  the  same.  The  question  presented  has  been 
the  subject  of  frequent  consideration  in  the  courts,  and  I  think 
it  is  established  in  this  State  that  where  it  distinctly  appears 
from  the  instrument  executed  that  the  seal  affixed  is  the  seal  of 
the  person  subscribing,  who  designates  himself  as  agent,  and  not 
the  seal  of  the  principal,  that  the  former  only  is  the  real  party 
who  can  maintain  an  action  on  the  same.  He  alone  enters  into 
the  covenants  and  is  liable  for  any  failure  to  fulfill,  and  he  only 


Sec.  1.] 


The  Real  Party  in  Interest. 


153 


can  prosecute  the  other  party.  He  is  named  in  the  indenture  as 
a  party,  and  an  action  will  not  lie  on  behalf  of  or  against  any 
person  who  is  not  a  party  to  the  instrument,  or  who  does  not 
lawfully  represent  or  occupy  the  place  of  such  party.  It  is  un- 
necessary to  review  all  the  decisions  bearing  upon  the  question, 
as  in  a  very  recent  case  the  principle  discussed  has  been  con- 
sidered by  this  court,  and  the  whole  subject,  as  well  as  the  de- 
cisions relating  to  the  same,  deliberately  and  carefully  reviewed. 
See  Briggs  v.  Partridge  (64  N.  Y.  357).    »    *    * 

It  is  also  urged  that  the  plaintiffs  can  maintain  the  action 
under  the  Code  (§  111)  as  the  real  parties  in  interest.  One 
great  object  of  this  provision  was,  to  enable  an  assignee  of  a 
chose  in  action  to  sue  in  his  own  name ;  and  it  would  be  placing 
a  construction  upon  this  provision  which  is  I  think  unwar- 
ranted, to  hold  that  a  sealed^"  instrument  executed  by  parties 
belongs  to  another,  without  any  transfer  whatever  by  a  party 
named  therein.  The  parties  whose  signatures  and  seals  are  af- 
fixed to  such  an  instrument,  and  who  alone  are  named  therein, 
are  the  real  parties  in  interest,  for  they  only  are  bound  thereby. 
No  right  therefore  exists  in  a  stranger  as  against  one  of  them. 


10  Compare  Rogers  v.  Gosnel,  51 
Mo.  466,  (1873)  where  a  real  estate 
agent,  who  had  negotiated  a  sale 
of  land,  was  allowed  to  sue  on  the 
provision  of  a  sealed  contract  be- 
tween the  seller  and  the  purchaser, 
binding  the  latter  to  pay  the 
agent's  commission.  This  result 
was  reached  on  the  following  rea- 
soning by  Adams,  J.: 

"I  see  no  good  reason  for  keep- 
ing up  this  sort  of  distinction  be- 
tween contracts  under  seal  and  not 
under  seal.  If  the  covenant  is 
made  for  the  benefit  of  a  third 
person,  why  is  he  not  a  party  to 
it  so  as  to  maintain  an  action  in 
his  own  name? 

The  part}'  in  whose  name  a  con- 
tract is  made  for  the  benefit  of 
another,  is  declaied  by  our  prac- 
tice act  to  be  a  trustee  of.  an  ex- 
press trust  and  such  trustee  may 
sue  in  his  own  name.     (Harney  v. 


Dutcher,  15  Mo.,  89;  Miles  v. 
Davis,  19  Mo.,  408;  2  W.  S.,  1000, 
3). 

It  does  not  follow  that  because 
the  trustee  is  allowed  to  sue  in  his 
own  name  on  such  a  contract,  that 
the  beneficiary  is  precluded  from 
doing  so.  A  recovery  by  either 
would  be  a  bar  to  another  action, 
whether  bought  by  the  trustee  or 
beneficiary. 

In  some  classes  of  trusts,  the 
trustee  alone  can  sue  at  law  but 
this  is  not   one   of  that   character. 

The  courts  have  repeatedly  held, 
that  a  person  for  whose  benefit  a 
contract  is  made  may  sue  in  his 
own  name,  when  it  appears  on  the 
face  of  the  contract  that  he  is  a 
beneficiary.  This  was  the  law  be- 
fore our  code  of  practice  was 
adopted,  and  the  code  allowing  a 
trustee  to  sue  has  not  altered  this 
rule." 


154  Pakties  to  Actions.  [Chap.  II. 

until  there  is  an  assignment  of  the  interest  of  such  party.  It 
is  enough  to  say  that  the  plaintiffs  were  not  lawfully  entitled 
to  the  rent,  under  the  lease,  or  the  defendant  bound  to  pay  them 
therefor,  until  a  transfer^  of  the  lessor's  interest,  or  until  some 
recognition  of  the  plaintiffs'  title  thereto  by  the  defendant, 
which  does  not  appear  to  have  been  made.  For  anything  which 
appears,  another  suit  may  have  been  brought  by  Brown  to  re- 
cover the  very  same  rent,  and  it  is  not  clear  what  valid  defense 
could  be  interposed  to  such  an  action.    *    *    * 

Judgment  affirmed. 


WATERMAN  v.  C,  M.  &  ST.  PAUL  RAILROAD  CO. 

Supreme  Court  of  Wisconsin,  1884.    61  Wis.  464. 

On  or  about  February  2,  1880,  in  consideration  of  $90  then 
paid,  the  defendant,  at  Darien,  Wisconsin,  agreed  with  the 
plaintiff  in  writing  to  transfer  one  carload  of  goods  consisting 
of  household  goods,  farming  implements,  one  pair  of  horses,  and 
some  lumber,  described  therein  as  the  property  of  the  plaintiff, 
from  said  Darien  to  Plum  Creek,  in  the  state  of  Nebraska.  The 
writing  recited  that  the  property  was  received  of  the  plaintiff  at 
the  former  place  and  consigned  to  him  at  the  latter  place.  As 
a  part  of  the  contract  the  plaintiff  therein  released  the  defend- 

1  See    also   Hartford   Ore    Co.   v.  agency  is  disclosed  on  the  face  of 

Miller,  41  Conn.  112,  (1874),  where  the  instrument   or   not;   Taudry  v. 

land  was  purchased  by  an  individ-  Walsch,  154  Cal.  108,   (1908) ;  Sny- 

ual    for    a    syndicate    which    was  der  v.  Exp.    Co.,  77  Mo.  523,  (1883) ; 

later     incorporated;     the     grantee  Stoll    v.     Sheldon,     13     Neb.     207, 

convej^ed  to  the  corporation  which  (1882);     Considerant    v.    Brisbane 

brought  an  action  in  its  own  name  22   N.   Y.   389,    (1860);   Indiana  v. 

against  the   original  grantor  for  a  Gillespie,    105    N.   Y.    653,    (1887); 

breach   of  the  covenant  of  seisin;  Albany  v.  Lundberg,  121  U.  S.  451, 

it  was  held  that  it  could  not  sue  (1887);  Beardsley  v.  Schmidt,  120 

as    the    "assignee    and    equitable  Wis.  405,  (1904), 
owner"     under     the     Connecticut  Contra:     That  in  case  of  a  sim- 

Code,     but     the     action     must     be  pie    contract    the    action    must    be 

brought  by  the  first  grantee.  brought  in  the   name   of  the  prin- 

Where  the  contract  is  not  under  cipal,   Martin   v.   Mask,   158   N.   C. 

seal,  the  agent,  in  whose  name  it  436,    (1912),   41   L.   R.   A.    (N.   S.) 

was    made    may    sue    whether    the  641,  annotated. 


Sec,  1.]  The  Real  Party  in  Interest.  155 

ant  from  certain  liabilities,  and  was  to  and  did  accompany  the 
property;  and  for  that  purpose  was  to  and  did  receive  a  free 
pass  from  the  defendant.  When  the  car  reached  Plum  Creek, 
the  railroad  company  having  the  same  in  charge  refused  to  de- 
liver the  property  to  the  plaintiff  unless  he  would  pay  an  extra 
charge  of  $32.28  over  and  above  that  already  paid,  as  expressed 
in  the  contract,  as  freight,  and  in  compliance  with  that  exaction 
the  same  was  then  and  there  paid,  and  the  property  delivered  to 
the  plaintiff,  and  this  action  is  to  recover  back  the  amount  of 
such  excessive  charges  so  exacted  and  paid.  It  appears  as  a  mat- 
ter of  fact,  that  the  property  belonged  to  Charles  Nowlan ;  that 
the  negotiations  for  the  carriage  were  conducted  by  his  brother, 
0.  F.  Nowlan;  that  the  agreed  freight  ($90)  was  paid  by  Chees- 
bro,  the  father-in-law  of  Charles  Nowlan ;  that  at  the  time  of  the 
loading  of  the  car  Cheesbro  started  to  sign  the  contract  in  be- 
half of  Charles  Nowlan,  when  the  defendant  stopped  him,  and 
insisted  that  as  the  plaintiff  was  to  accompany  the  goods  and 
receive  them  at  Plum  Creek,  he  should  execute  the  contract, 
which  he  accordingly  did,  and  that  recited  that  $90  was  received 
of  Cheesbro  for  the  plaintiff.  It  further  appears  that  the 
amount  of  the  extra  charge  exacted  at  Plum  Creek  was,  in  fact, 
furnished  and  paid  by  Charles  Nowlan  in  the  presence  and  with 
the  consent  of  the  plaintiff.  The  answer  consists  of  a  general 
denial  merely.  Upon  the  trial  the  jury  found  for  the  plaintiff, 
and  assessed  his  damages  at  the  amount  of  such  excessive  charges 
and  interest,  and  from  the  judgment  entered  thereon  this  ap- 
peal is  brought. 

Cassoday,  J.  Notwithstanding  the  plaintiff  is  described  in 
the  contract  of  carriage  as  consignor,  consignee,  and  sole  o"svner, 
yet  the  defendant  seeks  to  escape  liability  for  the  repayment  of 
the  excessive  exaction  on  the  sole  ground  that  the  plaintiff  was 
not  the  owner  of  the  property,  and  did  not  personally  furnish 
and  pay  the  overcharge.  Is  such  a  defense  available  ?  The  ques- 
tion has  elicited  much  discussion,  and  the  adjudicated  cases 
upon  it  present  a  considerable  disagreement.  We  make  no  at- 
tempt to  reconcile  an  irreconcilable  conflict.  It  is  enough  to 
know  that  our  conviction  as  to  the  law  applicable  has  the  sanc- 
tion of  respectable  authority,  and  especially  under  our  statute  as 
it  has  been  construed  by  this  court.  The  question  is  not  whether 
the  owner  could  have  maintained  the  action,  for  he  did  not  bring 
the  action.     There  seems  to  be  no  dispute  that,  where  there  is 


156  Parties  to  Actions.  [Chap,  II. 

nothing  appearing  to  the  contrary,  the  consignee  is  presumed  to 
be  the  owner  of  the  property,  and  as  such  may  maintain  an 
action  for  its  loss  or  depreciation  in  value  by  reason  of  the  neg- 
ligence of  the  carrier.  Undoubtedly  this  presumption  may  be 
overcome  by  evidence.  A  consignor  may  have  a  right  of  action 
against  the  carrier  by  reason  of  ownership.  So  he  may  have 
such  right  of  action  on  privity  of  contract.  The  contract  seems 
to  be  controlling,  at  least  to  a  certain  extent,  in  all  cases.  Evans 
v.  Marlett,  1  Ld.  Raym.  271;  Davis  v.  James,  5  Burr.  2680; 
Mason  v.  Lickbarrow,  1  H.  Bl.  357 ;  Moore  v.  Wilson,  1  Term. 
R.  659;  Joseph  v.  Knox,  3  Camp.  320;  Dunlap  v.  Lambert,  6 
Clark  &  F.  600;  Freeman  v.  Birch,  3  Q.  B.  492;  Blanchard  v. 
Page,  8  Gray,  281 ;  Finn  v.  R.  R.  Co.,  112  Mass.  524 ;  Carter  v. 
Graves,  9  Yerg.  446 ;  Northern  Line  Packet  Co.  v.  Shearer,  61 
111.  263 ;  Southern  Exp.  Co.  v.  Craft,  49  Miss.  480.  A  careful 
analysis  of  these  cases  will  be  found  in  a  well  written  article 
by  Judge  Pierce,  of  Tennessee,  in  7  South.  Law  Rev.  (N.  S.) 
255-283. 

It  appears  that  much  depends  upon  the  nature  of  the  act  com- 
plained of  and  the  character  of  the  action.  Thus,  in  Carter  v. 
Graves,  supra,  it  was  said — "that,  in  all  actions  on  the  case 
against  a  carrier  for  a  loss  or  injury  done  to  property,  the 
wrong  is  the  gist  of  the  action,  and  the  contract  to  deliver  col- 
lateral to  it.  In  all  actions  of  assumpsit  for  not  delivering  ac- 
cording to  contract,  the  contract  to  deliver  is  the  gist  of  the 
action,  and  the  loss  or  injury  sustained  is  collateral  thereto. ' '  In 
several  of  the  cases  above  cited,  an  action  for  the  breach  of  the 
contract  was  maintained  by  a  party  to  the  contract  having  no 
ownership  or  interest  in  the  property  carried.  Thus,  in  Joseph 
V.  Knox,  supra,  the  plaintiffs  had  no  ownership  nor  interest  in 
the  goods,  but,  as  shippers,  were  parties  to  the  contract,  and  it 
was  held  that  they  might  maintain  the  action  upon  the  bill  of 
lading  for  the  failure  to  deliver  and  carry.  Lord  Chief  Justice 
Ellenborough  observed  that,  ' '  there  is  a  privity  of  contract  estab- 
lished between  these  parties  by  means  of  the  bill  of  lading. 
That  states  that  the  goods  were  shipped  by  the  plaintiffs,  and 
that  the  freight  for  them  was  paid  by  the  plaintiffs  in  London. 
To  the  plaintiffs,  therefore,  from  whom  the  consideration  moves, 
and  to  whom  the  promise  is  made,  the  defendant  is  liable  for 
the  non-delivery  of  the  goods.  After  such  a  bill  of  lading  has 
been  signed  by  his  (the  carrier's)  agent,  he  cannot  say  to  the 


Sec.  1.]  The  Real  Party  in  Interest.  157 

shippers  that  they  have  no  interest  in  the  goods,  and  are  not 
damnified  by  his  breach  of  contract.  I  think  the  plaintiffs  are 
entitled  to  recover  the  value  of  the  goods,  and  they  will  hold 
the  sum  recovered  as  trustees  for  the  real  owner. ' ' 

So  in  Hooper  v.  Railway  Co.,  27  Wis.  91,  it  was  said  that 
"the  shipper  is  a  party  in  interest  to  the  contract,  and  it  does 
not  lie  with  the  carrier  who  made  the  contract  with  him  to  say, 
upon  a  breach  of  it,  that  he  is  not  entitled  to  recover  the  dam- 
ages unless  it  be  shown  that  the  consignee  objects;  for  without 
that  it  will  be  presumed  that  the  action  was  commenced  and  is 
prosecuted  with  the  knowledge  and  consent  of  the  consignee,  and 
for  his  benefit.  The  consignor  or  shipper  is,  by  operation  of  the 
rule,  regarded  as  a  trustee  of  an  express  trust,  like  a  factor  or 
other  mercantile  agent  who  contracts  in  his  own  name  on  behalf 
of  his  principal."  Here  the  defendant  contracted  solely  with 
the  plaintiff.  In  the  contract,  the  defendant,  with  full  knowl- 
edge of  the  facts,  recognized  the  plaintiff  as  the  sole  owner  of 
the  property.  The  freight  had  been  fully  paid  in  behalf  of  the 
plaintiff.  To  him,  the  defendant,  in  consideration  of  such  pay- 
ment, expressly  agreed  to  deliver  the  property  at  the  place  of 
consignment.  This  express  agreement  was  broken  by  the  refusal 
to  so  deliver,  except  upon  condition  of  the  further  payment 
of  the  unauthorized  exaction.  This  unauthorized  exaction  was 
complied  with  when  the  delivery  was  made.  Having  broken  the 
contract,  and  received  the  overcharge  in  consequence  of  the 
breach,  the  defendant  seeks  to  escape  liability  for  the  breach  on 
the  ground  that  the  only  party  with  whom  it  contracted  was 
not  in  fact  the  owner  of  the  property,  and  did  not  personally 
furnish  and  pay  the  overcharge  exacted  as  a  condition  of  the 
delivery.  To  hold  such  a  defense  available  would,  in  effect,  ab- 
rogate an  express  written  contract.  One  exception  to  the  stat- 
utory rule  that  ''every  action  must  be  prosecuted  in  the  name 
of  the  real  party  in  interest"  (section  2605),  is  that  "a.  trustee 
of  an  express  trust  *  *  *  may  sue  without  joining  with 
him  the  person  for  whose  benefit  the  action  is  prosecuted. ' '  Sec- 
tion 2607.  "A  trustee  of  an  express  trust,  within  the  meaning 
of  this  section,"  must  "be  construed  to  include  a  person  Avith 
whom,  or  in  whose  name,  a  contract  is  made  for  the  benefit  of 
another."  Id.  By  amendment  these  provisions  have  been  made 
applicable  to  actions  brought  in  justice  courts,  as  this  was.  Sub- 
division 27,  §  2,  c.  194,  Laws  1879.     If  the  consignor  or  shipper 


158  Paeties  to  Actions.  [Chap.  II. 

could  properly  be  "regarded  as  trustee  of  an  express  trust," 
under  this  statute,  as  held  in  Hooper  v.  R.  R.  Co.,  supra,  then 
certainly  the  person  described  in  the  contract  as  consignor,  con- 
signee, and  sole  owner,  and  for  whom  the  freight  has  been  paid, 
must  also  be  regarded  as  a  trustee  of  an  express  trust  under 
the  statute.  Allen  v.  Kennedy,  49  Wis.  549  (S.  C.  5  N.  W.  Rep. 
906.)« 

Judgment  affirmed. 


RICHARDSON  v.  MEANS. 
Supreme  Court  of  Missouri,  1856.    22  Mo.  495. 

This  was  an  action  commenced  June  17,  1853,  by  Maria  L. 
Richardson  (the  husband  having  afterwards  been  made  a  party 
by  an  amended  petition)  for  the  recovery  of  a  female  slave  and 
her  two  children,  alleged  in  the  petition  to  have  been  wrong- 
fully taken  by  the  defendant,  May  1,  1849,  and  unlawfully  de- 
tained by  him. 

Defendant,  in  his  answer,  denied  the  title  of  the  plaintiff, 
and  claimed  title  in  himself,  and  relied  upon  a  bill  of  sale  to 
himself,  dated  May  1,  1848,  of  the  negress  and  one  child,  ex- 
ecuted by  Thomas  R.  Richardson,  husband  of  plaintiff,  Maria, 
and  co-plaintiff  in  this  action. 

To  sustain  the  wife's  right,  she  relied  on  a  deed  of  gift  from 
her  father,  William  C.  Bruce,  dated  April  1,  1845,  by  which, 
in  consideration  of  love  and  affection  toward  the  plaintiff,  his 
daughter,  he  conveyed  the  female  slave  in  controversy  to  one 
Littleton  Jozner,  "upon  trust,  that  the  said  Jozner,  his  ex- 
ecutors, etc.,  shall  permit  my  said  daughter  to  hold  possession 
of  and  take  the  use,  hire  and  profits  of  the  said  Maria  and  her 
increase  to  her  sole  and  separate  use  during  her  life,  independ- 
ent of  her  said  husband ;  and  at  the  death  of  my  said  daughter, 
the  said  Maria  and  her  increase  to  be  equally  divided  between 
her  children,  etc."    *    *    * 

2  Compare  Thompson  v.  Fargo,  connecting  carrier  which  received 
49  N.  Y.  188,  (1872),  where  the  the  goods  and  failed  to  deliver 
agent  was  not  permitted  to  sue  a      them. 


Sec.  1.]  The  Real  Party  in  Interest.  159 

The  jury  found  for  the  defendant,  and  judgment  was  given 
accordingly.    Plaintiffs  appealed. 

Leonard,  J.,  delivered  the  opinion  of  the  court. 

"We  cannot  reverse  this  judgment,  no  matter  how  much  we 
may  regret  that  parties,  by  a  slip  in  the  form  of  proceedings, 
should  subject  themselves  to  costs  and  delay  in  the  judicial  en- 
forcement of  their  rights.  The  instructions  given  are  correct  in 
point  of  law,  and  this  seems  to  be  admitted ;  but  the  objection  is, 
that  the  one  given  by  the  court  upon  its  own  suggestion  was 
not  warranted  by  the  evidence  in  the  cause,  and  that,  although 
correct  in  the  abstract,  it  had  the  effect  of  misleading  the  jury. 
If  this  could  be  made  apparent  to  us,  it  might  furnish  sufficient 
ground  for  reversing  the  judgment  in  a  case  where  the  reversal 
would  avail  the  party.  Here,  however,  the  plaintiffs  have 
stated  themselves  out  of  court,  and,  therefore,  if  the  jury  were 
misled,  it  resulted  in  no  injury  to  them ;  for  the  reason  that,  ac- 
cording to  their  own  showing,  they  had  no  case  entitling  them  to 
recovery.  The  plaintiff's  title  is  derived  from  the  instrument 
of  gift  executed  by  the  father,  which  vests  the  legal  ownership 
in  the  trustee  for  the  use  of  the  wife  during  her  life,  and  upon 
her  death  for  the  use  of  her  children,  and  the  action  is  to  re- 
dress a  wrong  done  to  the  legal  ownership,  being  substantially 
an  action  for  the  conversion  of  the  plaintiff's  slaves.  Under  the 
old  form  of  proceeding,  this  suit  must  have  been  brought  by  the 
trustee  at  law ;  but  if,  from  any  cause,  the  legal  ownership  could 
not  have  been  made  effectual  for  the  protection  of  the  wife's 
equitable  right,  the  courts  would,  at  her  suit,  upon  a  proper 
statement  of  facts,  all  the  necessary  parties  being  before  them, 
have  administered  the  appropriate  equitable  relief.  But  it  is 
supposed  that  all  this  is  changed  by  the  new  code,  which  is  true 
to  some  extent.  It  must  be  observed,  however,  that  the  code 
has  not  changed  the  rights  of  parties,  but  only  provided  new 
remedies  for  their  enforcement ;  it  has  not  abolished  the  dis- 
tinction between  equitable  and  legal  rights,  but  the  distinction 
between  legal  and  equitable  remedies,  so  far  at  least  as  to  pro- 
vide that  one  form  of  suit  shall  be  used  for  the  enforcement  of 
both  classes  of  rights.  The  case  made  upon  the  record  was  for 
legal  relief ;  but  the  case  made  by  the  plaintiffs,  in  proof,  was  of 
a  different  character. 

It  was  the  duty  of  the  trustees  to  protect  the  legal  ownership 
from  violation,  and  to  preserve  the  property  for  the  use  of  the 


160 


Parties  to  ActioI^s.  [Chap.  11, 


parties  beneficially  interested  as  they  should  respectively  be- 
come entitled;  and  if,  as  before  remarked,  there  were  any  ob- 
stacles in  the  way  of  the  legal  remedy,  or  the  trustee  refused  to 
do  his  duty,  then,  upon  a  proper  case  stated,  and  the  proper 
parties  being  made,  the  courts  would,  in  a  civil  suit  under  the 
code,  afford  relief  according  to  the  principles  of  equity;  and 
the  present  judgment  cannot  be  pleaded  in  bar  of  any  equitable 
relief  that  shall  be  thus  sought  by  the  wife. 
The  judgment  must  be  affirmed. 


FELGER  V.  COWARD. 

Supreme  Court  of  California,  1868.     35  Cal.  650. 

This  was  an  action  of  ejectment  for  the  possession  of  an  eighth 
undivided  interest  in  a  mining  claim  and  quartz  mill  situated  in 
Mariposa  County.  The  complaint  was  in  the  usual  form,  and 
the  answer  traversed  all  of  its  material  averments.  It  appeared 
from  the  evidence  at  the  trial,  which  was  by  the  Court,  without 
a  jury,  that  the  defendant  entered  into  a  written  agreement  with 
the  plaintiff  to  convey  to  the  latter  by  sufficient  deed  said  in- 
terest in  said  mining  claim  and  mill,  upon  the  payment  to  the 
defendant,  at  a  stipulated  time,  of  the  purchase  price,  for  which 
a  promissory  note  was  executed  and  delivered  by  plaintitif  to  the 
defendant.  The  evidence  further  tended  to  prove  that  plaintiff 
had,  before  suit  brought,  complied  with  said  agreement  on  his 
part,  and  that  the  defendant  refused  to  make  said  conveyance  as 
stipulated,  and  repudiated  said  agreement.  Prior  to  the  execu- 
tion of  said  agreement  the  plaintiff  had  been  at  work  in  said 
mine  in  the  employ  of  the  defendant  and  others  of  its  owners, 
and  after  said  agreement,  and  until  a  short  time  before  the  com- 
mencement of  this  suit,  the  plaintiff  continued  at  work  in  said 
mine,  receiving  wages  for  his  labor,  and  the  dividends  there- 
from proportionate  to  said  interest  therein,  of  which,  according 
to  said  agreement,  he  was  to  become  the  purchaser. 

Judgment  passed  for  the  plaintiff  in  the  Court  below,  with- 
out any  findings  of  fact  being  made  and  filed,  and  thereupon 
the  defendant  moved  for  a  new  trial,  on  the  ground  that  the 
judgment  was  against  the  evidence  and  against  the  law.  The 
motion  was  denied,  and  the  defendant  appealed  from  the  judg- 


Sec.  1.]  The  Re.vl  Party  in  Interest.  161 

ment  and  from  the  order  denying  said  motion  for  a  new  trial. 

By  the  Court,  Sanderson,  J.: 

In  Patterson  v.  The  Keystone  Mining  Co.,  30  Cal.  360,  our 
attention  was  called  to  the  statute  of  the  13th  of  April,  1860 
(Stats.  ISCO,  p.  175),  in  relation  to  the  conveyance  of  gold  min- 
ing claims,  and  we  considered,  arguendo,  that  it  had  abrogated 
the  rule  announced  in  the  case  of  the  Table  Mountain  Tunnel 
Co.  V.  Stranahan,  20  Cal.  198,  to  the  effect  that  title  to  a  mining 
claim  would  pass  by  a  verbal  sale,  if  accompanied  by  a  transfer 
of  the  possession.  In  the  subsequent  case  of  Goller  v.  Fett,  30 
Cal.  484,  the  effect  of  the  statute  came  up  for  further  considera- 
tion, and  its  construction  became  indispensable  to  the  final  dis- 
position of  that  case,  and  the  effect  suggested  in  Patterson  v. 
Keystone  Mining  Co.  was  formally  declared  to  be  the  effect  of 
the  statute,  and  that  title  to  gold  mining  claims  could  be  passed 
only  by  an  instrument  in  writing.  (See  also  King  v.  Randlett. 
33  Cal.  318.) 

The  rule  established  in  Goller  v.  Fett  seems  to  be  conclusive 
of  the  present  case.  It  is  an  ordinary  action  of  ejectment,  and 
the  plaintiff,  at  least,  showed  only  a  contract  by  the  defendant 
to  convey.  His  remedy  was  for  specific  performance,  and,  as 
incidental  to  that,  delivery  of  the  possession.' 

Order  denying  a  new  trial  reversed  and  new  trial  granted. 

3  For    the   general    rule    that    an  to    the    plaintiff.      It    was    said    in 

equitable    title    will    not    support  this    case    that    under   the    Kansas 

ejectment,    see    Peck    v.    Newton,  statute  ejectment  was  an  equitable 

46  Barb.  175,  (N.  Y.  1863);  Eaton  as  well  as  a  legal  remedy.     If  this 

V.     Smith,     19     Wis.     537,     (1865).  means    that    in    an    action    triable 

Under    some    statutes    an   "equita-  by  jury  a  plaintiff  may  recover  on 

ble"   title   is   sufficient   to   support  the  basis   of   a  constructive   or  re- 

a    possessory    action,    Johanson    v.  suiting   trust,  the   innovation   may 

Washington,  190  U.  S.  179,  (1903).  lead  to  many  practical  difficulties, 

See  also  Eose  v.  Hayden,  35  because  a  jury  is  poorly  equipped 
Kan.  106,  (1886),  where  the  plain-  to  exercise  some  of  the  delicate 
tiff  recovered  in  ejectment  on  the  functions  of  a  chancellor  in  deal- 
ground  that  the  defendant  had  ing  with  restitution,  reformation 
taken  a  deed  to  the  land  in  his  and  rescission. 
own  name  in  violation  of  his  duty 


162  Parties  to  Actions.  [Chap.  II. 

WHEELER  V.  ALLEN. 

Court  of  Appeals  of  New  York,  1872.     51  N.  T.  37. 

Appeal  from  the  order  of  the  General  Terra  of  the  Supreme 
Court  in  the  first  judicial  district,  reversing  a  judgment  in  favor 
of  plaintiff  entered  on  a  verdict,  and  directing  a  new  trial. 

The  action  was  brought  to  recover  the  possession  of  personal 
property. 

The  complaint  alleged  that  the  defendant  had  become  pos- 
sessed of  and  wrongfully  detained  from  the  plaintiff  the  follow- 
goods  and  chattels  of  the  plaintiff,  that  is  to  say:  Securities 
(partially  written  and  partially  printed),  known  as  scrip  of 
the  Great  Western  Insurance  Company,  in  and  of  the  city  of 
New  York,  issued  by  the  said  company,  a  portion  thereof  in  1864 
of  the  value  of  $1,310,  and  the  residue  in  1865  of  the  value  of 
$4,880;  and  the  plaintiff  thereupon  demanded  judgment  that 
the  "defendant  deliver  to  the  plaintiff  the  said  goods  and  chat- 
tels, ' '  and  pay  the  plaintiff  damages  for  the  detention  thereof. 

The  defendant,  by  his  answer,  denied  each  allegation  of  the 
complaint. 

After  the  plaintiff  rested  his  case  the  defendant  moved  for  the 
dismissal  of  the  complaint  on  several  grounds,  which,  with  the 
facts  in  the  case,  so  far  as  they  are  material  to  the  decision  in 
this  court,  sufficiently  appear  in  the  opinion  of  the  chief  com- 
missioner. 

Earl,  C*  The  plaintiff  in  this  action  of  replevin  claimed  to 
receive  scrip  of  the  Great  Western  Insurance  Company  to  the 
amount  of  $1,310,  which  was  issued  in  the  year  1864,  and  scrip 
in  the  same  company  for  $3,570,  issued  in  the  year  1865,  and  he 
recovered  upon  the  trial  for  both  scrips. 

There  are  two  grounds  upon  which  I  hold  this  recovery  was 
erroneous. 

1.  As  to  the  scrip  of  1865,  it  seems  undisputed  that  the  de- 
fendant never  purchased  any  for  the  plaintiff.  He  was  directed 
to  take  the  plaintiff's  money,  which  was  in  his  hands,  and  invest 
it  in  the  scrip  of  that  year.  But  he  did  not  do  so,  but  used  the 
money  for  other  purposes.  It  is  true,  however,  that  he  gave 
plaintiff  a  certificate  June  2,  1865,  stating  that  he  had  invested 

4  Concurring  opinion  of  Lott,  Ch.  C.  omitted. 


Sec.  1.]  The  Real  Party  in  Interest.  163 

this  money  in  such  scrip,  but  this  certificate  was  untrue.  While 
ic  may  be  true  that  an  action  of  replevin  may  be  maintained 
to  recover  property  which  the  defendant  has  had  in  his  posses- 
sion but  has  wrongfully  disposed  of,  I  know  of  no  authority  or 
principle  which  will  authorize  a  recovery  in  such  an  action  for 
property  of  which  the  defendant  never  has  had  the  possession. 

2.  It  seems  to  be  undisputed  that  the  scrip  for  the  $1,310, 
was  issued  to  the  defendant  and  stood  in  his  name.  Hence,  he 
had  the  legal  title  to  the  same.  In  law  he  held  the  same  as 
trustee  for  the  plaintiff,  and  as  such  trustee  he  could  be  com- 
pelled to  account  to  the  plaintiff  in  an  action  of  equity.  But  an 
action  of  replevin  to  recover  the  scrip  under  such  circumstances 
is  a  great  novelty.  The  legal  title  was  never  vested  in  the  plain- 
tiff, and  his  only  remedy  to  procure  this  scrip  was  by  an  action 
in  equity.^ 

The  order  of  the  general  term  should  be  affirmed  and  judg- 
ment absolute  rendered  against  the  plaintiff  for  costs. 

Order  affirmed. 


WESTERN  RAILWAY  CO.  v.  NOLAN. 

Court  of  Appeals  of  New  York,  1872.    48  N.  Y.  513. 

The  City  of  Albany  had  issued  a  large  amount  of  bonds  in 
aid  of  certain  railroad  construction,  under  a  contract  with  the 
plaintiff  and  the  West  Stockbridge  Railroad  Co. ;  this  contract 
provided  that  the  plaintiff  should  provide  a  sinking  fund  to  be 
held  by  three  trustees  for  the  purpose  of  retiring  these  bonds  at 
maturity.  Under  this  arrangement  the  trustees  held  a  fund  of 
some  nine  hundred  thousand  dollars,  which  the  assessors  of 
Albany  were  attempting  to  assess  for  local  taxation. 

The  plaintiffs  began  this  action  to  restrain  such  assessment 
as  unauthorized  and  illegal. 

5  See    also    Johanneson    v.    Bor-  eate  sought  to  maintain  an  action 

chenius,  35  Wis.  131,  (1874),  where  for  conversion  against  the  defend- 

the    plaintiff    on    the    basis    of    an  ant    to    whom    the    certificate    had 

equitable    right    to    a   land    certifi-  been   issued. 


164  Parties  to  Actions.  [Chap.  II. 

The  court  dismissed  the  complaint  and  the  plaintiff  appealed.* 
Leonard,  C.  While  the  plaintiff  has  an  important  interest  in 
the  sinking  fund,  it  is  not  under  its  control  or  management, 
nor  is  the  title  to  it  vested  in  it.  It  has  such  an  interest  as 
would  enable  it  to  compel  an  accounting  by  the  trustees,  or 
maintain  an  action  against  them  for  the  correction  of  an  abuse 
of  the  fund.  The  plaintiff  has  agreed  to  indemnify  the  city 
of  Albany  from  injury  by  losses  to  the  fund,  and  is  thereby 
indirectly  bound  to  maintain  it,  or  to  pay  the  bonds,  amount- 
ing to  $1,000,000,  wdth  the  interest;  and  the  plaintiff  is  also 
entitled  to  the  amount  of  the  trust  funds  remaining,  after  the 
said  bonds,  with  the  interest,  have  been  satisfied  or  paid.  Per- 
haps it  might  maintain  an  action  against  third  parties  for  the 
protection  or  defense  of  the  fund,  in  case  the  trustees  should, 
on  request,  refuse  to  institute  the  proper  action  or  proceedings 
for  that  purpose.  The  plaintiff  should  be  regarded  as  a  cestui 
qui  trust,  and  interested  in  the  said  fund.  The  trustees  are  the 
parties  in  whom  the  fund  is  vested  and  whose  duty  it  is  to  main- 
tain and  defend  it  against  wrongful  attack  or  injury  tending 
to  impair  its  safety  or  amount.  The  title  to  the  fund  being  in 
them,  neither  the  cestuis  qui  trust  nor  the  beneficiaries'  can 
maintain  an  action  in  relation  to  it,  as  against  third  parties',  ex- 
cept in  case  the  trustees  refuse  to  perform  their  duty  in  that 
respect,  and  then  the  trustees  should  be  brought  before  the 
court  as  parties  defendant.  There  is  nothing  in  the  case  prov- 
ing any  refusal  or  reluctance  on  the  part  of  the  trustees  to  per- 
form any  duty  which  they  ought  to  assume  in  vindicating  the 
fund  from  illegal  assessment  or  taxation.  The  plaintiff  has  not, 
for  these  reasons  made  any  case  entitling  it  to  bring  this  action. 
There  are  other  technical  objections  to  this  action  which  are 
insurmountable.     *     *    * 

Judgment  affirmed. 

6  Statement   condensed   and  part  where  the  church   corporation  was 

of  the  opinion  omitted.  allowed  to  bring  an  action  to  quiet 

t  But    see    First    Baptist    Church  the  title  to  certain  church  property 

V.    Branham,    90    Cal.    22,    (1891),  held  by  trustees  for  it. 


Sec.  1.]  The  Real  Party  in  Interest.  165 

McCOMAS  V.  COVENANT  MUTUAL  LIFE  INS.  CO. 

Supreme  Court  of  Missouri,  1874.    56  Mo.  573. 

Adams,  Judge,  delivered  the  opinion  of  the  court. 

This  was  an  action  on  a  life  policy  issued  by  the  defendant  on 
the  29th  day  of  October,  1862,  insuring  the  life  of  Harry  G. 
McCoraas,  husband  of  the  plaintiff,  in  the  sum  of  five  thousand 
dollars.  The  consideration  on  the  face  of  the  policy,  and  by 
reference  to  a  statement  on  the  margin,  is  expressed  to  be  paid 
for  the  use  and  benefit  of  the  plaintiff,  the  wife  of  the  assured. 

The  policy  was  issued  to  the  husband,  and  the  covenant  is  to 
pay  to  him,  his  executors,  administrators  or  assigns,  in  sixty 
days  after  due  notice  and  proof  of  death,  the  sum  assured,  the 
balance  of  the  year's  premium,  if  any,  being  first  deducted 
therefrom  together  with  all  indebtedness  of  the  party  to  the 
company. 

The  annual  premium  to  be  paid  was  one  hundred  and  eighty- 
nine  dollars — ninety-five  dollara  of  which,  was  to  be  paid  in 
money  in  two  equal  installments  of  $47.50,  and  ninety-four  dol- 
lars in  annual  notes.  The  husband  died  on  the  3rd  day  of  June, 
1871,  leaving  the  last  six  annual  premium  notes  unpaid. 

This  suit  was  commenced  on  the  ninth  day  of  Decem))er,  1871, 
by  the  plaintiff  as  beneficiary  under  this  policy,  for  the  amount 
assured.  The  defendant  filed  a  demurrer  to  the  petition  upon 
the  ground  that  the  plaintiff  could  not  sue  as  beneficiary  on  this 
policy.  This  demurrer  was  overruled,  and  the  same  point  was 
afterwards  raised  by  motion  in  arrest  and  saved  by  an  exception 
to  the  action  of  the  court  in  overruling  the  motion.     *     *    * 

First — The  first  point  relied  on  by  the  defendant  is,  that  this 
action  cannot  be  maintained  by  the  plaintiff  on  the  policy  of 
insurance,  because  by  the  terms  of  the  policy  the  sum  assured 
was  to  be  paid  to  the  deceased  or  his  executors,  administrators 
or  assigns.  This  objection  was  raised  by  motion  in  arrest,  and 
also  on  the  trial  by  objection  to  the  admissibility  of  the  policy 
of  insurance  as  evidence.  It  is  manifest,  from  the  recital  in 
the  policy  in  regard  to  the  consideration  to  be  paid  as  premium, 
that  this  insurance  was  effected  by  the  husband  for  the  sole 
benefit  of  his  wife.  The  husband,  therefore,  was  constituted  a 
trustee  for  his  wife.  He  became  a  trustee  of  an  express  trust 
and  his  wife  was  the  beneficiary.     Our  statute  allows  a  trustee 


166  Parties  to  Actions.  [Chap.  II. 

of  an  express  trust  to  sue  in  his  own  name  without  joining  with 
him  the  person  for  whose  benefit  the  writ  is  prosecuted.  (2 
Wagn.  Stat.  1000,  sec.  3.)  But  this  statute  does  not  preclude 
the  beneficiary  under  a  contract  like  this  from  prosecuting  a 
suit  without  joining  the  trustee.  This  contract  on  its  face  was 
made  for  the  benefit  of  the  wife  alone,  and  she  is,  therefore,  the 
real  party  in  interest  and  had  the  right  to  bring  this  suit.  A 
recovery  by  her  would  be  a  bar  to  another  action  by  the  trustee. 
In  Rogers  &  Peck  v.  Gosnell  (51  Mo.  466)  it  was  held,  that 
either  the  trustee  or  beneficiary  of  a  contract  might  sue,  and  a 
recovery  by  either  would  be  a  bar  to  another  action.  (Miles  v. 
Davis,  19  Mo.  408 ;  Harney  v.  Dutcher,  15  Mo.  89 ;  Van  Schaick 
V.  R.  R.,  38  N.  Y.  346;  Record  v.  Sanderson,  2  How.  179;  Car- 
ter V.  The  Mayor  of  Albany,  43  N.  Y.  399 ;  Lawrence  v.  Fox,  20 

N.  Y.  268.)8 

Judgment  affirmed. 


Section  2.    Joinder  of  Parties. 
Code  of  Civil  Procedure  of  Nev^t  York. 

§  446.*    "All  persons  having  an  interest  in  the  subject  of  the 

8  That    the    personal    representa-  1921,  §  1095;  California,  Code  Civ. 

tives    of    the    insured    could    have  Proc,    1915,     §     378;     Connecticut, 

maintained  the  action,  see  Torrin-  Gen.    Stat.,    1918,    §    5640;    Idaho, 

field  V.  Mass.  Nat'l  Life  Ins.  Co.,  Comp.  Stat.,  1919,  §  6645;  Indiana, 

47  N.  Y.  430,   (1872).  Burn's    Ann.    Stat.    1914,    §    263; 

Compare  Kimball,  Admr.  v.  Gil-  Iowa,    Comp.    Code,    1919,    §    7085; 

man,   60   N.   H.   54,    (1880),   where  Kansas,   Gen.   Stat.,   1915,    §    6924; 

the    administrator    of   the    insured  Kentucky,   Eev.   Code,   1900,   §   22; 

had    collected    the    amount    of    a  Minnesota,    apparently    no     corre- 

similar  policy,  and  the  beneficiary  sponding   section;    Missouri,   E.   S. 

was    allowed    to    recover    it    from  1919,  §  1157;  Montana,  Rev.  Code, 

him   by   indebitatus   assumpsit   for  1907,  §  6487;  Nebraska,  Ann.  Stat., 

money  had   and   received.  1911,  §   1036;   Nevada,  Rev.  Laws, 

IThis   section   appears   verbatim  1912,    §    4998;    New   Mexico,    Ann. 

or  in  substance  in  nearly  all  of  the  Stat.  1915,  §  4071;  New  York,  Civ. 

Codes:    For  the  exact  wording  see:  Prae.  Act.  1920,   §   209: 

Alaska,  Code  Civ.  Proc.  1900,  §  38;  "All   persons   may  be  joined  in 

Arizona,  apparently  no  correspond-  one   action   as   plaintiffs,   in   whom 

ing   section;    Arkansas,   Dig.    Stat.  any   right   to   relief   in   respect    of 


Sec.  2.] 


Joinder  of  Parties. 


167 


action,  and  in  obtaining  the  judgment  demanded,  may  be  joined 
as  plaintiffs,  except  as  otherwise  expressly  prescribed  in  this 
act." 

§  447.*    "Any  person  may  be  made  a  defendant  who  has  or 


or  arising  out  of  the  same  trans- 
action or  series  of  transactions  is 
alleged  to  exist  whether  jointly, 
severally  or  in  the  alternative, 
where  if  such  persons  brought 
separate  actions  any  common  ques- 
tion of  law  or  fact  would  arise; 
provided  that  if  upon  the  appli- 
cation of  any  party  it  shall  ap- 
pear that  such  joinder  may  em- 
barrass or  delay  the  trial  of  the 
action,  the  court  may  order  sepa- 
rate trials  or  make  such  other 
order  as  may  be  expedient,  and 
judgment  may  be  given  for  such 
one  or  more  of  the  plaintiffs  as 
may  be  found  to  be  entitled  to 
relief,  for  the  relief  to  which  he 
or  they  may  be  entitled."  (This 
•provision  was  taken  from  the  pres- 
ent English  Eules,  Order  XXI, 
Eule  1,  for  a  construction  of  which, 
see  Drincbrier  v.  Wood,  L.  E.  Ch. 
D.  (1898)  1,  393.)  North  Carolina, 
Consol.  Stat.,  1919,  §  455;  North 
Dakota,  Comp.  Laws,  1913,  §  7403; 
Ohio,  Gen  Code,  1921,  §  11254; 
Oklahoma,  Eev.  Laws,  1910,  §  4690; 
Oregon,  apparently  no  correspond- 
ing section;  South  Carolina,  Code, 
1912,  §  166;  South  Dakota,  Eev. 
Code,  1919,  §  2313;  Utah,  Comp. 
Laws,  1907,  §  2913;  Washington, 
Bern.  &  Bal.  Code,  1910,  §  189, 
3  90;  Wisconsin,  Stat.,  1919,  §  2602; 
Wyoming,  Comp.  Stat.,  1920,  § 
5592;  United  States,  Equity  Eules, 
1912. 

Eule  37.  "Every  action  shall  be 
prosecuted  in  the  name  of  the  real 
party  in  interest,  but  an  executor, 
administrator,  guardian,  trustee  of 
an  express  trust,  a  party  wdth 
whom  or  in  whose  name  a  contract 


has  been  made  for  the  benefit  of 
another,  or  a  party  expressly  au- 
thorized by  statute,  may  sue  in 
his  own  name  without  joining  Avith 
him  the  party  for  whose  benefit 
the  action  is  brought.  All  persona 
having  an  interest  in  the  subject 
of  the  action  and  in  obtaining  the 
relief  demanded  may  join  as  plain- 
tiffs, and  any  person  may  be  made 
a  defendant  who  has  or  claims  an 
interest  adverse  to  the  plaintiff. 
Any  person  may  at  any  time  be 
made  a  party  if  his  presence  is 
necessary  or  proper  to  a  complete 
determination  of  the  cause.  Per- 
sons having  a  united  interest  must 
be  joined  on  the  same  side  as 
plaintiffs  or  defendants,  but  when 
anyone  refuses  to  join,  he  may  for 
such  reason  be  made  a  defendant. 
Anyone  claiming  an  interest  in 
the  litigation  may  at  any  time  be 
permitted  to  assert  his  right  by 
intervention,  but  the  intervention 
shall  be  in  subordination  to,  and 
in  recognition  of,  the  propriety  of 
the    main   proceeding." 

Eule  38.  "When  the  question  is 
one  of  common  or  general  interest 
to  many  persons  constituting  a 
class  so  numerous  as  to  make  it 
impracticable  to  bring  them  all 
before  the  court,  one  or  more  may 
sue   or  defend  for  the  whole. ' ' 

2  This  section  appears  in  sub- 
stantially the  same  form  in  nearly 
all  the  Codes.  For  the  exact  word- 
ing,  see: 

Alaska,  Code  Civ.  Proc.  1900, 
§  38;  Arizona,  apparently  no  cor- 
responding section;  Arkansas,  Dig. 
Stat.,     1921,     ii     1096;     California, 


168 


Parties  to  Actions. 


[Chap.  II. 


claims  an  interest  in  the  controversy  adverse  to  the  plaintiff, 
or  who  is  a  necessary  party  defendant,  for  the  complete  deter- 
mination or  settlement  of  a  question  involved  therein,  except  as 
otherwise  expressly  prescribed  in  this  act." 

§  448.^    "Of  the  parties  to  the  action,  those  who  are  united 


Code  Civ.  Proc,  1915,  §  379;  Con- 
necticut, Gen,  Stat.,  1918,  §  5641; 
Idaho,  Comp.  Stat.,  1919,  §  6646; 
Indiana,  Burn's  Ann.  Stat.,  1914, 
§  269;  Iowa,  Comp.  Code,  1919, 
§  7087;  Kansas,  Gen.  Stat.,  1915, 
§  6925;  Kentucky,  Eev.  Code,  1900, 
§  23;  Minnesota,  apparently  no 
corresponding  section;  Missouri, 
E.  S.  1919,  §  1158;  Montana,  Eev. 
Code,  1907,  §  6488;  Nebraska,  Ann. 
Stat.,  1911,  §  1037;  Nevada,  Eev. 
Laws,  1912,  §  4999;  New  Mexico, 
Comp.  Stat.,  1915,  §  4072;  New 
York,   Civ.   Prac.  Act.,   1920: 

§  211.  ^'All  persons  may  be 
joined  as  defendants  against  whom 
the  right  to  any  relief  is  alleged 
to  exist,  whether  jointly,  severally 
or  in  the  alternative;  and  judg- 
ment may  be  given  against  such 
one  or  more  of  the  defendants  as 
may  be  found  to  be  liable,  accord- 
ing to  their  respective  liabilities." 

§  212.  "It  shall  not  be  neces- 
sary that  each  defendant  shall  be 
interested  as  to  all  the  relief 
prayed  for,  or  as  to  every  cause 
of  action  included  in  any  proceed- 
ing against  him;  but  the  court 
may  make  such  order  as  may  ap- 
pear just  to  prevent  any  defend- 
ant from  being  embarrassed  or  put 
to  expense  by  being  required  to 
attend  any  proceedings  in  which 
he  may  have  no  interest." 

§  213.  "Where  the  plaintiff  is 
in  doubt  as  to  the  person  from 
whom  he  is  entitled  to  redress,  he 
may  join  two  or  more  defendants, 
to  the  extent  that  the  question  as 
to  which,  if  any,  of  the  defendants 


is  Hable,  and  to  what  extent,  may 
be  determined  as  between  the 
parties." 

North  Carolina,  Consol.  Stat., 
1919,  §  456;  North  Dakota,  Comp. 
Laws,  1913,  §  7404;  Ohio,  Gen. 
Code,  1921,  §  11255;  Oklahoma, 
Eev.  Laws,  1910,  §  4691;  Oregon, 
apparently  no  corresponding  sec- 
tion; South  Carolina,  Code,  1912, 
§    167;    South    Dakota,   Eev.   Code, 

1919,  §  2314;  Utah,  Comp.  Laws, 
1907,  §  2914;  Washington,  Eem.  & 
Bal.  Code,  1910,  §  189;  Wisconsin. 
Stat.,  1919,  §  2603;  Wyoming, 
Comp.  Stat.,  1920,  §  5593;  United 
States,  Equity  Eule  37,  ante  p.  167. 

8  This  section  appears  in  sub- 
stantially the  same  form  in  nearly 
all  of  the  Codes.  For  the  exact 
wording,  see: 

Alaska,  Code  Civ.  Proc,  1900. 
§  39;  Arizona,  Eev.  Stat.,  1913,  § 
416;  Arkansas,  Dig.  Stat.,  1921, 
§  1097;  California,  Code  Civ.  Proc, 
1915,  §  382;  Connecticut,  appar- 
ently no  corresponding  section; 
Idaho,  Comp.  Stat.,  1919,  §  6649; 
Indiana,  Burn's  Ann.  Stat.,  1914, 
§  270;  Iowa,  Comp.  Code,  1919,  § 
7088,  7089;  Kansas,  Gen.  Stat., 
1915,  §  6926,  6927;  Kentucky,  Eev. 
Code,  1900,  §  24,  25;  Minnesota,  no 
corresponding  section;  Missouri,  E. 
S.,  1919,  §  1159;  Montana,  Eev. 
Code,  1907,  §  6491;  Nebraska,  Ann. 
Stat.,  1911,  §  1038,  1039;  Nevada, 
Eev.  Laws,  1912,  §  5001;  New 
Mexico,  Ann.  Stat.,  1915,  §  4073, 
4079;    New   York,   Civ.   Prac.   Act, 

1920,  §§  194,  195;  North  Carolina, 
Consol,    Stat.,    1919,    §    457;    North 


Sec.  2.] 


Joinder  op  Parties. 


169 


in  interest  must  be  joined  as  plaintiffs  or  defendants,  except  as 
otherwise  expressly  prescribed  in  this  act.  But  if  the  consent 
of  any  one,  who  ought  to  be  joined  as  a  plaintiff,  cannot  be  ob- 
tained, he  may  be  made  a  defendant,  the  reason  therefor  being 
stated  in  the  complaint.  And  where  the  question  is  one  of  a 
common  or  general  interest  of  many  persons,  or  where  the  per- 
sons, who  might  be  made  parties,  are  very  numerous,  and  it 
may  be  impracticable  to  bring  them  all  before  the  court,  one 
or  more  may  sue  or  defend  for  the  benefit  of  all." 

§  454.*  Two  or  more  persons  severally  liable  upon  the  same 
written  instrument,  including  the  parties  to  a  bill  of  exchange 
or  a  promissory  note,  whether  the  action  is  brought  upon  the 
instrument,  or  by  a  party  thereto  to  recover  against  other  par- 
ties liable  over  to  him ;  may,  all  or  any  of  them,  be  included  as 
defendants  in  the  same  action,  at  the  option  of  the  plaintiff. 


Dakota,  Comp.  Laws,  1913,  §  7406; 
Ohio,  Gen.  Code,  1921,  §§  11256. 
11257;  Oklahoma,  Eev.  Laws,  1910, 
§§  4692,  4693;  Oregon,  no  corre- 
sponding section;  South  Carolina, 
Code,  1912,  §  168;  South  Dakota, 
Eev.  Code,  1919,  §  2215;  Utah, 
Comp.  Laws,  1907,  §  2917;  Wash- 
ington, Eem.  &  Bal.  Code,  1910, 
§  189;  Wisconsin,  Stat.,  1919,  § 
2604;  Wyoming,  Comp.  Stat.,  1920, 
§§  5594,  5595;  United  States,  Eq- 
uity Eules,  37,  38  ante  p.  167. 

4  The  corresponding  section  in  a 
number  of  the  codes  varies  sub- 
stantially from  the  New  York  pro- 
vision.    See: 

Alaska,  Code  Civ.  Proc,  1900, 
§  34;  Arizona,  E.  S.,  1913,  §  407; 
Arkansas,  Dig.  Stat.,  1921,  §  1099; 
California,  Code,  Civ.  Proc,  1915,  § 
383;  Connecticut,  no  corresponding 
section;  Idaho,  Comp.  Stat.,  1919, 
§  6650;  Indiana,  Burn's  Ann.  Stat., 

1914,  §  271;  Iowa,  Comp.  Code, 
1919,    §    7090;    Kansas,   Gen.   Stat., 

1915,  §  6928;  Kentucky,  Eev.  Code, 
1900,  §  26;  Minnesota,  Gen.  Stat., 
1913,  §  7683;  Missouri,  E.  S.,  1919, 
§  1160;  Montana,  Eev,  Code,  1907, 


§  6492;  Nebraska,  Ann.  Stat.,  1911, 
§  1040;  Nevada,  Eev.  Laws,  1912. 
§  5002;  New  Mexico,  Ann.  Stat., 
1915,  §  4076;  New  York,  Civ.  Prac. 
Act.,  1920,  §  216;  North  Carolina, 
Consol.  Stat.,  1919,  §  458;  North 
Dakota,  Comp.  Laws,  1913,  §  7407: 
Ohio,  Gen.  Code,  1921,  §  11258; 
Oklahoma,  Eev.  Laws,  1910,  §  4694; 
Oregon,  Comp.  Laws,  1920,  §  37; 
South  Carolina,  Code,  1912,  §  169; 
South  Dakota,  Eev.  Code,  1919, 
§  2316;  Utah,  Comp.  Laws,  1907, 
§  2918;  Washington,  Eem.  &  Bal. 
Code,  1910,  §  192;  Wisconsin,  Stat., 
1919,  §  2609,  2609a;  Wyoming, 
Comp.  Stat.,  1920,  §  5596.  United 
States,  Equity  Eules,  1912,  Eule 
42:  "In  all  cases  in  which  the 
plaintiff  has  a  joint  and  several 
demand  against  several  persons, 
either  as  principals  or  sureties,  it 
shall  not  be  necessary  to  bring  be- 
fore the  court  as  parties  to  a  suit 
concerning  such  demand  all  the 
persons  liable  thereto;  but  the 
plaintiff  may  proceed  against  one 
or  more  of  the  persons  severally 
liable." 


170  Parties  to  Actions.  [Chap.  II. 

I.    Plaintiffs. 

DEWEY  V.  CAREY. 

Supreme  Court  of  Missouri,  1875.    60  Mo.  234. 

"Wagner,  Judge,  delivered  the  opinion  of  the  court. 

The  petition  alleges  that  defendant  instituted  a  suit  by  in- 
junction against  Thomas  D.  Price,  Leroy  D.  Dewey  and  the 
plaintiff,  and  that  upon  executing  a  bond  to  them  a  temporary 
injunction  was  granted ;  that  upon  a  hearing  of  the  cause  the  in- 
junction was  dissolved  and  the  petition  dismissed ;  but  no  assess- 
ment of  damages  was  had  at  the  time  of  the  dissolution.  This 
action  is  now  instituted  by  the  plaintiff  alone  on  the  bond  to 
recover  damages  for  alleged  breaches. 

A  demurrer^  was  sustained  to  the  petition  because  the  other 
obligees  in  the  bond  were  not  made  plaintiffs. 

Where  an  obligation  is  executed  to  two  or  more  jointly,  all® 
the  obligees  must  sue  upon  it.  They  cannot  separate  the  liabil- 
ity and  bring  an  action  in  favor  of  each.  If  the  plaintiff  can 
maintain  this  suit,  then  Leroy  D.  Dewey  can  maintain  one,  and 
Thomas  D.  Price  still  another,  and  thus  the  defendant  will  be 
harassed  by  three  suits  on  the  same  obligation  which  was  jointly 
made  to  the  three  persons.  By  our  law'  all  contracts  are  joint 
and  several  and  a  party  may  sue  any  one  or  more  debtors 
against  whom  he  has  a  demand.  But  the  principle  has  no  ap- 
plication to  the  obligees  in  a  contract,  who  must  sue  jointly  as 

6  "The  defendant  may  demur  to  the    objection    may    be    taken    by 

the  complaint,  where  one   or  more  answer.      N.    Y.    Code    Civ.    Proe., 

of  the  following   objections  there-  §  498. 

to   appear   upon   the   face   thereof:  6  If  a  necessary  plaintiff  should 

*     *      *      (5)   that  there  is   a  mis-  refuse  to  join,  the  statute  permits 

joinder    of    parties    plaintiff,     (6)  him  to  be  made  a  defendant,  Eizer 

that   there   is   a  defect   of   parties,  v.  Gilpatrick,  16  Kan.  564,   (1876). 

plaintiff   or    defendant.     (7)     That  Formerly    the    Supreme    Court    of 

causes  of  action  have  been  improp-  Missouri  refused  to  apply  this  rule 

erly  united."     *     *     *     N.  Y.  Code  to   legal   actions,    Eyan   v.   Eiddle, 

Civ.  Proc.  §  488.  76  Mo.  521,  (1883),  but  the  section 

"Where  any  of  the  matters  enu-  was  later  amended  so  as  to  include 

merated    in    section    four    hundred  actions    at    law.    Mo.    E.    S.    1919, 

and    eighty-eight    of    this    act    as  §    1158. 

grounds    of   demurrer,    do    not    ap-  7  Wagner's    Statutes,    1872,    Ch. 

pear  on  the  face  of  the  complaint  34,  §  1. 


Sec.  2.]  Joinder  op  Parties.  171 

plaintiffs.  Where  the  contract  made  by  the  obligor  is  a  joint 
one,  one  obligee  cannot  make  it  a  several  obligation  by  suing 
alone.8  (Clark  v.  Cable,  21  Mo.  223;  Bobbins  v.  Ayres,  10  Mo. 
538 ;  Wells  v.  Gaty,  9  Mo.  561.) 

To  permit  one  party  to  sue  might  result  in  great  injury  in  a 
case  of  this  kind.  One  plaintiff  might  recover  the  entire  pen- 
alty of  the  bond,  yet  this  would  be  no  bar  to  another  action  by 
a  plaintiff  who  was  not  a  party  to  the  suit;  and  as  there  could 
be  no  apportionment  the  party  would  be  made  liable  for  obliga- 
tions that  he  never  entered  into.  It  is  true  that  it  may  happen 
in  some  instances  that  one  obligee  has  sustained  more  damage 
than  some  of  his  co-obligees,  but  this  would  present  no  insuper- 
able objection,  as  under  our  practice  act  I  think  the  judgment 
might  be  adjusted  so  as  to  secure  the  respective  rights  of  the 
parties. 

The  judgment  must  be  affinned;  the  other  judges  concurring. 


DEAN  V.  ST.  PAUL  &  DULUTH  R.  R.  COMPANY. 

Supreme  Court  of  Minnesota,  1893.    53  Minn.  504. 

One  C.  E.  Peterson  was  at  work  for  defendant  as  brakesman 
during  March,  1892,  for  which  it  owed  him  $50.53.  He  owed 
the  plaintiff,  Michael  C.  Dean,  five  dollars  for  board,  and  gave 
him  an  order  upon  the  Railroad  Company  for  that  amount. 
The  Company  returned  the  order  to  plaintiff,  saying  it  declined 
to  collect  claims  against  its  employees.  On  April  15,  1892,  Dean 
commenced  this  action  against  the  Railroad  Company  before 
William  Cinder,  a  Justice  of  the  Peace  of  Pine  County,  to  re- 
cover the  five  dollars,  and  on  May  12,  1892,  he  obtained  judg- 
ment.    Defendant  appealed  to  the  District  Court  on  questions 

8  Where  the  plaintiff  sues   alone  39,   (1868);   Davis  v.  Chouteau,  32 

on   a  demand  in   favor   of  himself  Minn.  548,  (1884),  post, 
and  another  jointly,  and  the  defect  At  common  law  the  objection  in 

does    not    appear    on    the    face    of  such  a  case  might  be  taken  under 

the    complaint,    it    seema    that    the  the  g-cneral  issue  on  the  ground  of 

objection  must  be  taken  by  answer  variance,  Hill  v.  Tucker,  1  Taunt, 

in   the   nature   of   a   ];'.ca  in   ubute-  7,    (1807). 
ment,   Patchin   v.   Peck,    38   N.   Y. 


172  Parties  to  Actions.  [Chap.  II. 

of  law  alone.  There  the  judgment  of  the  Justice  was  affirmed, 
the  Judge  saying:  "I  think  it  must  be  held  in  this  state,  and 
that  it  ought  to  be  held  everywhere,  that  an  assignee  of  a  part 
of  an  entire  demand  may  maintain  an  action  upon  it.  See  Canty 
V.  Latterner,  31  Minn.  239 ;  Risley  v.  Phenix  Bank,  83  N.  Y. 
318."    Defendant  appealed  to  this  court.® 

Vanderburgh,  J.  *  *  *  It  was  determined  in  Canty  v. 
Latterner,  31  Minn.  242,  (17  N.  W.  Rep.  385),  in  accordance 
with  the  weight  of  authority,  that  an  assignment  of  a  part  in- 
terest in  a  demand  or  obligation  may  be  made,  and  that  the 
courts  will  recognize  and  protect  the  equitable  interest  of  the 
assignee. 

But  the  court  did  not  hold  that,  as  against  the  debtor  or  ob- 
ligor, a  separate  and  independent  action  might  be  maintained 
by  the  assignee,^®  to  recover  the  amount  of  his  interest,  or  that 
a  single  demand  could  be  split  up  and  enforced  in  that  way  by 
the  assignee,  severally,  so  as  to  subject  the  debtor  to  sundry 
different  actions,  where  he  has  not  consented  to  the  assignment. 
No  such  burden  can  be  imposed  upon  the  maker  of  a  single, 
*  entire  contract.  He  cannot,  against  his  consent,  be  compelled 
to  deal  with  a  plurality  of  creditors,  and  be  subject  to  be 
harassed  by  a  multiplicity  of  suits.  The  case  of  Risley  v.  Phenix 
Bank,  83  N.  Y.  318,  does  not  hold  a  different  doctrine.  The 
court  there  say:  ''The  tendency  of  modern  decisions  is  in  the 
direction  of  more  fully  protecting  the  equitable  rights  of  as- 
signees of  choses  in  action,  and  the  objection  that  to  allow  an 
assignment  of  a  part  of  an  entire  demand  might  subject  the 
creditor  to  several  actions  has  much  less  force  under  a  system 
which  requires  all  parties  in  interest  to  be  joined  as  parties  to 
the  action. ' '  There  can  be  but  one  action  upon  a  single  demand. 
The  parties  interested  must  join^  as  plaintiffs,  or  those  not  joined 
must  be  made  defendants,  in  the  action,  so  that  the  whole  con- 
troversy may  be  determined  in  one  suit,   unless  the  creditor 


9  Statement   condensed   and   part  Apparently    the    same    view    was 
of   opinion    omitted.  taken   in   Risley    v.   Bk.    83   N.   Y. 

10  In    Grain    v.    Aldrich,    35    Cal.  318,    (1891)   Nat'l  Ins.  Co.  v.  Ry., 
574,  (1869),  a  complaint  by  a  par-  44   Utah   26,   (1913). 

tial  assignee  was  sustained  on  gen-  1  As  to  the  right  of  the  partial 

eral  demurrer   on  the   ground  that  assignor    to    sue    alone,    see    Cable 

the  objection  for  defect  of  parties  v.  Marine   Ry.   Co.  and  note,   ante 

must  be  taken  by  special  demurer.  p.    127. 


Seo.  2.]  Joinder  op  Parties.  173 

agrees  to  a  severance,  as  by  the  acceptance  of  an  order,  or  other- 
wise. The  assignee  of  a  part  interest  cannot  be  permitted  to 
carve  out  of  the  entire  demand  the  amount  of  his  claim,  leaving 
other  parties  to  bring  separate  actions  for  their  several  interests. 
See  Field  v.  Mayor  of  N.  Y.,  6  N.  Y.  179,  and  National  Exch. 
Bank  v.  McLoon,  73  Me.  510,  where  the  questions  involved  here- 
in are  fully  discussed.  The  case  of  bank  checks  is  distinguish- 
able, for  manifest  reasons.    *    *    * 

Judgment  reversed. 


GOODNIGHT  v.  GOAR. 

Supreme  Court  of  Indiana,  1868.    30  Ind.  418. 

Frazer,  J.  The  appellant  and  Geo.  W.  Collier  and  Levin 
Cambridge  sued  the  appellees,  Eli  J.  and  Benjamin  F.  Goar, 
upon  the  following  contract : 

"Jefferson  Township,  Tipton  County,  Indiana." 
"We,  the  undersigned,  citizens  of  said  to\\mship,  agree  and 
bind  ourselves  in  case  either  of  us  is  drafted  into  the  service 
of  the  United  States,  to  pay  our  proportionable  amount  to  hire 
substitutes  to  fill  our  places ;  and  this  we  agree,  not  only  for  the 
present  impending  draft,  but  for  all  other  calls  that  may  be 
made  during  the  present  rebellion,  unless  a  majority  shall  agree 
to  abandon  the  above  arrangement. 

Given  under  our  hands  this  10th  day  of  February,  1865. 
(Signed.) 

G.  W.  Collier, 
Eli  J.  Goar, 
Ben.jamin  F.  Goar, 
Wm.  H.  Goodnight, 
Levin  Cambridge." 
It  was  alleged  in  the  complaint  that  all  these  parties  were  en- 
rolled in   said  township   and  liable  to   draft   then   impending; 
that  the  plaintiffs  and  the  defendant  Benjamin  were  drafted, 
and  that  the  defendant  Eli  was  not  drafted ;  that  each  of  the 
plaintiffs  hired  and  paid  a  substitute  for  himself,  Collier  for 
fifteen  hundred  dollars,  and  Goodnight  and  Cambridge  each  for 
eleven  hundred  dollars;  which  several  sums  were  reasonable  and 


174  Parties  to  Actions.  [Chap.  II. 

necessary;  that  the  defendant  Benjamin,  by  failing  to  report 
himself  for  duty,  avoided  military  service  and  the  necessity  of 
procuring,  and  did  not  procure  a  substitute  for  himself;  and 
that  neither  of  the  defendants  has  paid  to  either  of  the  plain- 
tiffs anything  toward  defraying  the  costs  of  said  substitutes; 
though  the  same  has  been  demanded. 

A  demurrer  to  the  complaint,  assigning  the  want  of  sufficient 
facts,^  amongst  other  causes,  was  sustained ;  and  this  is  the  only 
error  assigned. 

The  question  argued  is,  whether  the  plaintiffs  could  properly 
join  in  the  suit ;  and  we  have  heretofore  held,  upon  full  consid- 
eration, that,  under  the  code,  that  question  is  raised  by  demurrer 
for  want  of  sufficient  facts.  Berkshire  v.  Schultz,  25  Ind.  523. 
In  that  case,  we  expressed  the  opinion,  that  the  rule  declared  in 
Mann  v.  Marsh,  35  Barb.  68,  that  "when  two  or  more  plaintiffs 
unite  in  bringing  a  joint  action,  and  the  facts  stated  do  not 
show  a  joint^  cause  of  action  in  them,  a  demurrer  will  lie,"  was 
correct  and  best  comported  with  the  spirit  of  the  code. 

The  code  itself  is  not  exactly  definite  as  to  who  may  be  joined 
as  plaintiffs.  It  provides,  however,  that  judgment  may  be  given 
for  or  against  one  or  more  of  several  plaintiffs  (sec.  368),  which 
was  the  practice  in  equity,  though  it  was  otherwise  at  law.  It 
also  provides  (sec.  17),  that  all  persons  having  an  interest  in  the 
subject  of  the  action,  and  in  obtaining  the  relief  demanded, 
shall*  be  joined  as  plaintiffs,  except  in  certain  cases  mentioned 
in  the  nineteenth  section.  Indeed,  the  code  seems  to  have  re- 
enacted  the  rules  which  have  prevailed  in  courts  of  equity,  as  to 
who  must  join  as  plaintiffs,  and  may  be  joined  as  defendants. 
But  as  to  those  cases  in  which,  in  equity,  plaintiffs  might  or 

2  But  where,  as  under  the  New  was  a  fatal  variance  between  the 
York  Code,  misjoinder  of  plaintiffs  contract  alleged  and  the  contract 
is  expressly  made  a  cause  of  de-  proved,  Whitmore  v.  Merrill,  87 
niurrer,  it  would  seem  that  the  ob-  Me.  456,   (1895). 

jection    might    well    be    taken    on  The   rule   seems  to   be   the   same 

that  ground,  Berney  v.  Drexel,  33  under  the  Code,  Slaughter  v.  Daven- 

Kun.    419;    Tenant    v.    Phister,    51  port,    82    Mo.    App.    652,     (1896). 

Cal.  511,   (1876).  Pelly  v.  Boyer,  7  Bush   (Ky.)   513, 

3  At     common     law,     where     the  (1870). 

declaration    alleged    a    promise    in  4  The    Indiana  Code  provides  that 

favor  of  the  plaintiffs  jointly,  but  persons    having    an    interest,    etc. 

the     proof     disclosed     a     separate  shall   be   joined   instead    of   "may 

promise    in    favor    of    each,    there  be  joined",  as  in  the  other  codes. 


Sec.  2.]  Joinder  of  Parties.  175 

might  not  have  joined,  at  their  option,  the  code  does  not  ex- 
pressly speak,  for  the  reason,  probably,  that  the  general  rule  in 
equity  in  relation  to  parties  plaintiff  was  not  founded  upon  any 
uniform  principle  and  could  not  be  expounded  by  any  universal 
theorem  as  a  test.  Sto.  Eq.  PI.  §  539.  And  it  may  have  been 
thought  safer,  therefore,  to  leave  each  case  to  be  decided  by  the 
courts  upon  authority  and  analogy.  That  it  was  intended  that 
the  rules  of  pleading  in  courts  of  equity  should  govern  the  sub- 
ject is  quite  evident  from  those  provisions  of  the  code  which 
prescribe  the  relief  which  may  be  granted,  and  to  whom ;  in  this 
respect  conforming  in  all  respects  to  the  established  practice  of 
those  courts — a  mode  of  administation  quite  impracticable  in  a 
great  many  cases,  unless  the  parties  might  be  as  in  chancery. 

The  present  inquiry,  is,  then,  in  view  of  the  considerations 
above  stated,  reduced  to  this:  could  these  plaintiffs  formerly 
have  joined  in  chancery?  In  solving  this  question  we  may  be 
aided  by  considering  the  nature  of  the  contract  upon  which  the 
suit  is  brought.  The  obligations  wliich  it  imposes  are  strictly 
several,  each  party  for  himself  becoming  bound  in  a  certain 
event  to  pay.  The  obligation  thus  assumed  is,  under  the  facts 
alleged,  to  each  one  of  the  plaintiffs  separately,  by  each  de- 
fendant, for  one-fifth  of  such  sum  as  that  plaintiff  was  obliged 
to  pay  for  a  substitute  for  himself.  This  proportion,  thus  due 
to  one,  cannot  be  either  increased  or  diminished  by  the  fact  that 
another  plaintiff  is  also  entitled  to  recover  from  the  same  de- 
fendant a  like  proportion  of  the  sum  paid  by  him  for  a  substi- 
tute. Each  plaintiff  has  an  interest  only  in  compelling  the 
defendants  severally  to  reimburse  him,  and  cannot  possibly  be 
affected  by  the  success  or  failure  of  any  one  of  his  co-plaintiffs 
in  the  suit.  Each  plaintiff  seeks  by  the  action  to  attain  an  ob- 
ject for  himself  exclusively, — the  recovery  of  so  much  money 
as  the  defendants  respectively  owe  him.  They  have  therefore  no 
common  or  joint  interest  in  the  relief  sought,  which  is  the  object 
of  the  suit.  Nor  have  they  any  common  or  joint  interest  in  the 
subject^  or  foundation  of  the  action,  which  is  the  failure  of  the 
defendants  respectively  to  pay  according  to  contract.  The  fail- 
ure to  pay  Goodnight  does  not  concern  any  other  plaintiff,  and 
so,  the  failure  to  pay  each  of  the  plaintiffs  is  a  matter  of  entire 

5  For  an  analysis  and   definition       McArtlmr  v.  Moffett,  143  Wis.  564, 
of    "subject    of    the    action"    see        (1910). 


176  Paeties  to  Actions.  [Chap.  II. 

indifference  to  each  of  the  others.  If  each  two  of  the  five  per- 
sons to  this  agreement  had  mutually  coutracted  by  a  separate 
writing  to  pay  one-fifth  of  whatsoever  sum  might  be  necessary 
to  procure  a  substitute  for  either,  if  drafted,  there  would  have 
been  twenty  separate  paper  contracts,  instead  of  one  as  now. 
It  was  a  matter  of  convenience  merely  that  one  writing,  ex- 
ecuted by  all,  should  have  been  adopted  to  evince  their  several 
undertakings;  but  it  imposed  exactly  the  same  liabilities  as  if 
twenty  writings  such  as  we  have  mentioned  had  been  used.  In 
the  latter  case  it  would  be  too  plain  for  doubt  that  each  plaintiff 
must  sue  separately.  "Why  should  it  be  otherwise  now?  There 
is  certainly  no  good  reason.  The  statute  has,  it  is  true,  provided, 
that  persons  severally  and  immediately  liable  on  the  same  in- 
strument may,  all  or  any  of  them,  be  sued  in  the  same  action  at 
the  plaintiff's  option.  2  G.  &  H.  50,  sec.  20.  This  perhaps  au- 
thorizes each  of  the  present  plaintiffs  to  join  all  the  defendants 
in  one  suit.  It  is  but  the  old  equity  rule  as  to  defendants,  in 
cases  upon  a  joint  and  a  several  contract,  extended  by  the  stat- 
ute. Story  Eq.  PI.  §  159.  It  may,  however,  be  worthy  of  con- 
sideration whether  this  statute  was  intended  to  apply  to  cases 
where  by  one  instrument  each  maker  becomes  singly  liable  for 
a  sum  for  which  no  other  maker  can  in  any  event  be  held.  But 
that  question  is  not  before  us,  nor  is  it  now  intended  to  exp^ss 
any  opinion  upon  it. 

In  Tate  v.  0.  &  M.  R.  R.  Co.,  10  Ind.  174,  it  was  said  that 
"all  who  are  united  in  interest  must  join  (as  plaintiffs)  in  the 
suit,  unless  they  are  so  numerous  as  to  render  it  impracticable, 
while  those  who  have  only  a  common  interest  in  the  controversy, 
may,  one  or  more  of  them,  institute  an  action.  This,  however, 
must  not  be  understood  as  allowing,  in  all  cases,  two  or  more 
persons  having  separate  causes  of  action,  though  arising  out  of 
the  same  transaction,  to  unite  and  pursue  their  remedies  in  one 
action.  Several  plaintiffs  cannot  by  one  complaint  demand  sev- 
eral matters  of  relief  which  are  plainly  distinct  and  uncon- 
nected. But  where  one  general  right  is  claimed,  where  there  is 
one  common  interest  among  all  the  plaintiffs,  centering  in  the 
point  in  issue  in  the  cause,  the  objection  of  improper  parties 
cannot  be  maintained."  This  statement  of  the  general  rules 
governing  the  subject,  though  quite  comprehensive,  is  perhaps 
as  specific  as  the  state  of  the  authorities  will  warrant.  The  mat- 
ter is,  in  considerable  measure,  a  question  for  the  exercise  of 


Sec.  2.]  Joinder  of  Parties.  177 

judicial  discretion  under  the  circumstances  of  each  particular 
ease,  with  a  view  to  practical  convenience  in  the  administration 
of  justice. 

In  the  case  before  us  there  is  in  the  plaintiffs  no  community 
of  interest  in  any  matter  involved  in  the  suit ;  no  right  common 
to  all  is  claimed ;  every  thing  is  separate  save  only  that  the  right 
asserted  by  each  is  founded  in  a  contract  which  for  convenience 
happens  to  be  upon  the  same  sheet  of  paper.  We  have  failed 
to  find  any  warrant  in  the  adjudged  cases  for  a  joinder  of  plain- 
tiffs under  such  circumstances.  The  only  possible  suggestion  in 
its  favor  is  that  a  multiplicity  of  suits  would  be  avoided;  but 
even  that  is  more  apparent  than  real,  and  would  be  accom- 
plished only  in  name,  and  not  in  fact.  The  number  and  variety 
of  separate  issues  to  be  tried  and  of  distinct  judgments  to  be 
rendered  would  not  be  diminished  in  the  least. ^ 

Judgment  affirmed. 


RIZER  V.  CALLEN. 

Supreme  Court  of  Kansas,  1882.     27  Kansas,  339. 

HoRTON,  C.  J. :  A.  W.  Callen,  John  Cross,  John  K.  Wright, 
Henry  Mitchell,  A.  Clough,.  R.  E.  Law^enceson,  and  Moses 
Waters,  with  others,  were  sureties  upon  the  official  bond  of 
Robert  0.  Rizer  the  county  treasurer  of  Davis  county.  His 
term  of  office  as  treasurer  expired  on  Oct.  12,  1880,  and  there 
was  due  from  him  as  such  treasurer  the  sum  of  $12,837.47.  Of 
this  amount  Rizer  paid  $1,248.55,  leaving  a  balance  due  of 
$11,588.92.  Afterward  the  parties  above  named,  with  other 
sureties,  were  sued  upon  the  official  bond  of  the  defaulting  treas- 
urer to  recover  the  moneys  so  withheld  by  him,  and  the  suit 
was  dismissed  by  compromise  as  to  the  said  named  parties,  upon 
the  payment  by  them  of  $3,500.  On  July  6,  1881,  the  sureties 
who  had  made  this  payment  commenced  their  joint  action  against 
the  plaintiff  in  error  (defendant  below),  to  recover  $3,500,  with 
interest  thereon  from  the  5th  day  of  March,  1881.  Upon  trial 
judgment  was  rendered  in  their  favor  for  $3,653.11;  and  the 

6  And  so  in  Tennant  v.  Phister,  to  each  of  several  persons  for  the 
51  Cal.  511,  (1876),  where  the  con-  occupation  of  a  number  of  tracts 
tract  bound  the  defendant  to  pay      of   land   owned   severally. 


178  Parties  to  Actions.  [Chap.  II. 

defendant  below  complains  of  this  judgment,  for  several  rea- 
sons. 

1,  It  is  contended  in  this  behalf  that  as  the  testimony  shows 
that  each  plaintiff  furnished  his  proportion  of  the  total  pay- 
ment, they  have  no  interest  in  common,  and  therefore  not  being 
united  in  interest  could  not  be  joined  as  plaintiffs. 

It  appears  from  the  record  that,  although  Rizer  was  indebted 
in  a  sum  exceeding  $11,000,  and  an  action  had  been  brought 
against  all  of  his  sureties  upon  his  official  bond  for  the  recovery 
of  that  amount,  that  a  compromise  was  made  by  the  plaintiffs 
below,  whereby,  for  the  consideration  of  $3,500,  they  were  re- 
leased and  discharged  from  all  further  liability  on  the  bond. 
While  it  is  true  that  each  of  the  sureties  paid  $500,  or  gave  notes 
that  were  taken  in  satisfaction  of  $500,  to  make  the  $3,500,  no 
one  surety  was  released  upon  the  pajanent  of  $500,  but  the 
whole  of  the  $3,500  was  jointly  paid  by  said  sureties  for  the  de- 
faulting treasurer;  and  the  sureties  were  jointly  interested  in 
making  the  payment  of  the  $3,500,  because  the  release  was 
obtained,  not  upon  the  payment  of  $500  by  each,  but  upon  the 
joint  payment  of  the  $3,500.  If  the  compromise  with  the  com- 
missioners had  been  that  each  surety  upon  his  individual  pay- 
ment of  $500  would  be  released  and  discharged  from  all  liabil- 
ity, there  would  be  no  joint  or  common  interest'  between  the 
plaintiffs;  but  as  these  sureties  agreed  jointly  to  settle  with 
the  county  for  $3,500,  to  obtain  a  discharge  of  all,  paying  the 
$3,500,  and  thereafter  performed  their  agreement  by  jointly 
paying  said  sum,  they  could  join  in  a  suit  to  recover  the  sum 
so  jointly  paid.  In  the  case  of  Tate  v.  R.  R.  Co.,  10  Ind.,  174, 
to  which  we  are  referred  by  counsel  of  plaintiff  in  error,  the 
plaintiffs  were  the  owners  of  several  lots,  in  front  of  which 

7  In    Lindell    v.    Brant,    17    Mo.  (1873),    it    was    held    that    in    an 

150,    (1852),   it   was   held   on   com-  ordinary  case   where   several   sure- 

mon  law  principles,  where  several  ties  paid  the  debt  of  their  princi- 

have    agreed   to   contribute   to   the  pal,  they   must   sue   separately   for 

expenses   of   a  suit   in  which   they  indemnity. 

were  all  interested,  and  one  failed  See  also  Pelly  v.  Bowyer,  7  Bush, 

to  pay  his  share  which  was  made  573,   (Ky.  1870),  to  the  effect  that 

up    pro    rata   by    the    others,    that  several    distributees    of    an    estate 

they  could  not  join  in  indebitatus  could  not  join  in  an  action  against 

assumpsit  for  money  paid,  etc.,  but  the  administrator  to  recover  their 

each   must  sue  separately.  respective    shares. 

In  Sevier  v.  Eoddy,  51  Mo.  580, 


Sec.  2.]  Joinder  op  Parties.  179 

the'  railroad  company  erected  for  a  roadbed  in  the  street  an 
embankment  and  trestle-work,  which  excluded  them  from  the 
street.  The  court  there  held  that  the  plaintiffs,  though  not 
united  in  interest  with  each  other,  had  the  right  to  join  in  an 
action  to  compel  the  company  to  fill  up  the  street  on  each  side 
of  the  railroad  track  so  as  to  make  it  passable,  or  to  remove 
the  road.  We  do  not  think  this  case  is  of  any  force  against  the 
ruling  of  the  district  court.  The  other  authorities  cited  by  the 
same  counsel  are  to  the  effect  that  where  two  or  more  persons 
have  separate  causes  of  action  against  the  same  defendant, 
though  arising  out  of  the  same  transaction,  they  are  not  allowed 
to  unite  and  pursue  their  remedies  in  one  action.  "We  fully 
agree  as  to  the  law  thus  declared,  but  do  not  think  the  cause 
at  bar  controlled  by  it,  because,  under  the  compromise,  a  certain 
payment  was  agreed  to  be  made  for  the  discharge  of  the  sureties, 
and  this  payment  was  jointly  made  by  them  for  the  discharge 
of  all  making  the  payment.  The  parties  to  this  action  were 
united  in  interest  in  making  the  compromise — in  raising  the 
$3,500,  in  paying  the  $3,500,  and  therefore  had  a  right  to  be 
joined  as  plaintiffs.  (1  Parsons  on  Contracts,  5th  ed.,  ch.  20, 
p.  20;  Appleton  v.  Bascom,  3  Mete,  169;  Hopkins  v.  Lane 
(N.  Y.  Ct.  of  Appeals,  Jan.,  1882),  13  Rep.  343;  May  v.  May, 
1  C.  &  P.,  44.)  In  the  last  case  the  action  was  brought  by  the 
plaintiffs  to  recover  the  sum  of  £446  paid  bj^  them  as  bail  for 
the  defendants.  To  make  up  this  sum  of  money,  each  of  the 
plaintiffs  advanced  his  share.  It  was  therein  contended  by  de- 
fendants that  separate  actions  ought  to  have  been  brought  by 
each  of  the  plaintiffs,  because  the  money  paid  was  the  money 
of  each,  and  that  there  could  not  be  a  joint  action  unless  it  was 
paid  from  a  joint  fund.  The  court  w^as  of  the  opinion  that  as 
the  plaintiffs  made  the  payment  to  the  defendants  in  one  sum, 
and  as  a  joint  payment,  the  action  could  be  maintained  in  the 
form  in  which  it  was  brought.     *     *     * 

Judgment  affirmed. 


180  Parties  to  Actions.  [Chap.  II. 

WINNE  V.  NIAGARA  FIRE  INSURANCE  CO. 

Court  of  Appeals  of  New  York,  1883.     91  N.  Y.  185. 

Appeal  from  order  of  the  General  Term  of  the  Supreme 
Court,  in  the  third  judicial  department,  entered  upon  an  order 
made  November  23,  1881,  which  affirmed  a  judgment  in  favor 
of  plaintiffs,  entered  upon  a  verdict.^ 

Andrews,  Ch.  J.  *  *  *  The  remaining  question  is  whether 
a  joint  action  lies  in  favor  of  the  plaintiffs.  The  plaintiff 
Henry  W.  Winne  was  the  ovmer  of  the  property  insured,  and 
the  plaintiff  Benjamin  J.  Winne  was  mortgagee.  The  policy  con- 
tains the  clause,  ''loss,  if  any,  payable  to  Benjamin  J.  Winne, 
to  the  extent  of  his  mortgage  interest  therein."  We  think  a 
joint  action  is  proper.  The  plaintiffs  have  a  common  interest 
in  enforcing  the  contract.  The  plaintiff  Henry  W.  Winne  has 
no  adverse  interest  to  that  of  his  co-plaintiff.  The  fund  is  ap- 
plicable, first  upon  the  mortgage  debt,®  and  when  that  is  paid, 
the  balance  belongs  to  the  mortgagor.  It  is  we  think  quite  ap- 
propriate, and  in  accord  with  the  flexible  rule  of  procedure  now 
applied  in  courts  of  justice,  to  allow  persons  situated  as  are 
the  plaintiffs,  to  unite  in  maintaining  the  action,  and  the  prac- 
tice is  sanctioned  by  the  language  of  the  Code,  and  of  adjudged 
cases.  (Code,  §  466  [446?]  ;  Boynton  v.  Clinton,  etc.,  Ins.  Co., 
16  Barb.  254;  Ennis  v.  Harmony  F.  Ins.  Co.,  3  Bosw.  516; 
Lasher  v.  North  Western  Ins.  Co.,  18  Hun.  101.) 

We  find  no  error  in  the  record  and  the  judgment  should 
therefore  be  affirmed. 

Judgment  affirmed. 


DEPUY  V.  STRONG. 

Court  of  Appeals  of  New  York,  1867.    3  Keyes,  603. 
The  plaintiffs  were  non-suited  at  the  trial  on  the  ground  that 

8  statement  condensed  and  part  sue  alone  as  the  real  party  in  in- 
of   opinion   omitted.  terest,   see  note   to  Burr   v.   Beers, 

9  For  casea  where  the  mortgagee,  ante  p.  148. 
to  whom  the  loss  is  payable,  may 


Sec.  2.]  Joinder  of  Parties.  .  181 

the  action  should  have  been  brought  by  all  of  the  co-tenants 
jointly.^'' 

Grover,  J. :  The  law  in  this  state  prior  to  the  enactment  of 
the  Code  was  settled,  that  tenants  in  common  must  all  join  in 
an  action  of  trespass  to  recover  damages  for  injuries  to  real 
estate  held  in  common.  (Hill  v.  Gibbs,  and  cases  cited,  5  Hill. 
56.)  The  rule  applied  to  personal  and  not  to  real  actions.  It 
was  founded  upon  the  idea  that  it  was  an  injury  to  the  posses- 
sion, and  that  as  the  possession  of  one  tenant  in  common  was 
regarded  as  the  possession  of  all,  the  injury  was  to  their  joint 
right,  and  therefore  all  must  join  in  prosecuting  the  remedy. 
The  law  having  been  so  determined,  it  must  still  be  so  held 
unless  changed  by  the  legislature.  It  is  claimed  that  section 
111  of  the  Code  has  changed  the  law  in  this  respect.  That  sec- 
tion provides  that  every  action  must  be  prosecuted  in  the  name 
of  the  real  party  in  interest,  with  exceptions  not  applicable  to 
the  present  case.  The  only  change  effected  by  this  provision 
was  to  enable  courts  of  law  to  treat  assignments  of  certain 
choses  in  action  as  transferring  the  legal  title,  which,  at  com- 
mon law,  transferred  only  the  equitable.  The  rule  at  the  com- 
mon law  was,  that  the  owner  of  the  legal  title  must  sue.  Section 
119  has  (I  think)  no  bearing  upon  the  question  in  this  case. 
That  provides  that  those  united  in  interest  must  be  joined  as 
plaintiffs  or  defendants ;  but  if  the  consent  of  any  one  who 
should  have  joined  as  plaintiff  cannot  be  obtained,  he  may  be 
made  a  defendant;  the  reason  thereof  being  stated  in  the  com- 
plaint.   This  clearly  does  not  authorize  the  omission^  of  a  party 

10  statement  condensed  from  the  the  tenants  in  common  must  join, 

report  of  this  case  in  37  N.  Y.  372.  Hunter    v.    Yarborough,    97    N.    C. 

1  For  the  same  reason  tenants  in  68,  (1895). 

common   of   a   chattel   should   join  Tenants  in  common  of  land  may 

in    an    action    for    its    conversion,  join  to  recover  possession,  or   one 

Whitney     v.     Stark,     8     Cal.     514,  may     sue     separately,     Mathis     v. 

(1857);    Thompson  v,  Ey.,  80   Mo.  Boggs,    19    Nebr.    698;    Brown    v. 

521,   (1883).  Warren,    16    Nev.   228,    (1881);    as 

In    such    cases    where    the    non.  to  whether  one  tenant  in  common 

joinder    is    waived    by    failure    to  suing  alone  may  recover  possession 

demur  or  set  it  up  in  the  answer,  of  the  entire  tract,  or  only  of  his 

the  damages  are  apportioned.    Van  share,  see  King  v.  Hyatt,  51  Kau. 

Hoosier  v.  Ey.,  70  Mo.  145,  (1879).  504,  (1893). 

Where  it  is  sought  to  recover  in  Apparently   at   common  law   the 

quasi  contract  on  the  theory  of  a  recovery  in  sufh  cases  was  limited 

waiver    of   the    conversion,    all    of  to  the  plaintiff's  undivided  share. 


182  Parties  to  Actions.  [Chap.  II. 

which  the  existing  law  required.  It  is  said  that  it  would  be 
incongruous  to  make  one  tenant  in  common  a  co-defendant  with 
a  trespasser,  upon  his  refusal  to  join  as  plaintiff.  This  is  so, 
but  the  answer  is,  that  that  is  the  only  remedy  provided  by 
the  Code  for  a  case  when  before  if  he  refused  to  join  as  plain- 
tiff, his  co-tenant  could  not  maintain  an  action  at  all  unless  the 
court,  upon  the  special  facts,  permitted  his  name  to  be  used 
as  plaintiff.  I  think  it  clear  that  the  Code  has  not  changed  the 
law  as  to  the  requisite  parties  in  this  class  of  actions.  The 
question  arises  as  to  the  mode  in  which  the  defendant  may 
avail  himself  of  the  omission  to  join  a  co-tenant  as  plaintiff. 
Previous  to  the  Code,  this  could  only  be  done  by  demurrer 
where  the  defect  appeared  upon  the  margin,  or  in  case  it  did 
not,  by  plea  in  abatement.  The  latter  plea  has  been  abolished^ 
by  the  Code.  The  only  mode  provided  for  presenting  a  defense 
being  by  demurrer  or  answer,  section  144,  among  other  things, 
provides  that  a  defendant  may  demur  to  the  complaint  when  it 
shall  appear  upon  the  face  thereof  that  there  is  a  defect  of  par- 
ties plaintiff  or  defendant.  In  the  present  case,  the  defect  of 
parties  plaintiff  did  appear  upon  the  face  of  the  complaint. 
The  plaintiffs  alleged  that  they  owned  an  undivided  interest 
in  the  land.  The  remaining  interest  must  of  necessity  have  been 
owned  by  others,  either  as  joint  tenants  or  tenants  in  common 
with  the  plaintiffs.  In  either  case  the  co-tenants  were  necessary 
parties.  One  mode  of  presenting  this  question,  provided  by  the 
Code,  was  by  demurring  to  the  complaint.  This  the  defendants 
interposed.  The  Special  Term  erroneously  overruled  it,  and 
gave  the  defendants  leave  to  answer.  The  defendants  answered, 
setting  up,  among  other  defenses,  the  defect  of  parties  plain- 
tiff. This  was  an  abandonment  of  the  demurrer,  and  placed 
the  case  in  the  same  position  as  though  none  had  been  inter- 
posed. It  remains  to  inquire  whether,  in  case  the  defect  does 
appear  upon  the  face  of  the  complaint,  it  can  be  made  available 
by  answer.    This  inquiry  is  answered  by  section  147.    That  pro- 

Denne    v.    Judge,    11    East.    288,  McNear    v.    "Williamson,    166    Mo. 

(1809);  Doe  v.  King,  6  Exch.  791,  358. 

(1807).  2  The    code    abolished    the    plea 

Since     any    tenant     in    common  in  abatement  in  name   but  not  in 

may   sue   separately   in    ejectment,  substance,    since    it    expressly    al- 

it  seems  that  he  cannot  make  an  lows  the  same  defence  to  be  made 

unwilling    co-tenant    a    defendant,  bj    answer,  Ed. 


Sec.  2.]  Joinder  of  Parties.  183 

vides  that  when  any  of  the  matters  enumerated  in  section  144 
do  not  appear  upon  the  face  of  the  complaint,  the  objection 
may  be  taken  by  answer.  This  clearly  implies  that  when  the 
defect  appears  upon  the  face  of  the  complaint,  it  is  available 
only  by  a  demurrer  to  the  complaint.  This  being  so,  setting 
it  up  in  the  answer  is  a  mere  nullity.  The  defendants,  in- 
stead of  answering,  should  have  appealed  from  the  judgment 
ordered  upon  the  demurrer.  It  has  been  repeatedly  held  by 
this  court  that  defects  of  this  description  must  be  insisted  upon 
in  the  mode  provided  by  the  Code,  or  they  are  waived.  (33 
N.  Y.  43;  32  id.  635.) 

The  judgment  appealed  from  must  be  reversed  and  a  new 
trial  ordered.  If  the  defendant  has  any  relief  under  the  pecu- 
liar facts  of  this  case,  it  is  by  obtaining  leave  in  the  Supreme 
Court  to  withdraw  his  answer,  and  let  judgment  be  entered 
upon  the  demurrer. 

Judgment  reversed. 


PORTER  V.  FLETCHER. 

Supreme  Court  of  Minnesota,  1879.    25  Minn.  493. 

GiLPiLLAN,  C.  J. — The  complaint  alleges  that  in  May,  1877, 
the  defendants  owned  six  certain  lots  in  an  addition  to  JMinne- 
apolis,  and,  to  induce  plaintiff  and  one  Libby  to  purchase  the 
same,  and  with  intent  to  cheat  and  defraud  them,  falsely  and 
fraudulently  represented  to  them  that  the  lots  extended  out  to 
and  fronted  on  Twenty-first  avenue  south,  and  Minnahaha  av- 
enue, and  thence  back  to  an  alley  through  the  centre  of  the 
block,  and  were  about  the  ordinary  size  of  lots  in  that  vicinity — 
to  wit,  about  fifty  feet  front  by  about  one  hundred  and  fifty- 
seven  feet  deep ;  and  that,  believing  in  said  representations,  the 
plaintiff  and  Libby  purchased  the  lots  from  defendants,  and 
paid  them  therefor  $3,000,  and  defendants  conveyed  the  lots  to 
them;  that  such  representations  were  false,  and  kno-vvn  to  de- 
fendants to  be  so ;  and  that,  except  as  to  a  part  of  one  of  them, 
the  lots  do  not  extend  to  the  avenue,  but  that  a  strip  of  land 
about  forty  feet  wide,  owned  by  other  persons,  and  not  con- 
veyed by  defendants'  deed,  lies  between  the  lots  and  the  avenue; 


184  Parties  to  Actions.  [Chap.  II. 

that  afterwards  and  before  they  discovered  the  fraud,  plaintiff 
and  Libby  made  partition  of  the  lots,  each  taking  in  severalty 
three  of  them ;  alleges  that,  by  reason  of  such  matters,  plaintiff 
had  sustained  damages  to  a  specified  amount,  and  demands 
judgment  therefor.  The  defendants  demurred :  first,  for  defect 
of  parties  plaintiff,  because  Libby  is  not  joined;  and,  second, 
because  the  complaint  does  not  state  facts  sufdcient  to  consti- 
tute a  cause  of  action.    The  demurrer  was  overruled.    *    *    * 

The  first  ground  of  demurrer  is  well  taken.  An  objection  is 
made  that  a  demurrer  for  defect  of  parties  will  not  lie,  except 
it  appears  from  the  complaint  that  the  original  proper  party  to 
the  cause  of  action  not  joined  is  still  alive,  so  that  he  can  be 
made  a  party,  or,  if  dead,  who  succeeded  to  his  interest  or  lia- 
bility, as  seems  to  have  been  required  in  a  plea  in  abatement 
for  want  of  proper  parties,  at  common  law.  If  this  were  so,  it 
would  be  difficult  to  conceive  a  well-drawn  complaint  upon 
which  the  question  of  want  of  proper  parties  could  be  raised  by 
demurrer.  The  demurrer  given  by  the  statute  is  not  a  mere 
substitute  for  the  plea  in  abatement.  The  former  raises  a  ques- 
tion of  law  upon  the  facts  stated  in  the  complaint.  The  latter 
presented  an  issue  of  fact,  and  as  it  was  regarded  as  a  dilatory 
plea,  strict  rules  were  applied  to  it,  and  it  was  required  to  state 
the  facts  so  fully  as  to  exclude  the  possibility  of  its  having  been 
improperly  interposed.  The  demurrer  presents  the  issue  of 
law  that  upon  the  facts  stated  in  the  complaint,  no  other  facts 
appearing,  another  party  named  should  be  joined  as  plaintiff 
or  defendant.  If,  on  these  facts  standing  alone,  some  other 
party  should  be  joined,  the  complaint  ought  to  have  alleged 
other  facts,  showing  that  the  interest  or  liability  of  such  other 
party  had  ceased. 

The  cause  of  action  accrued  when  the  defendants  obtained  the 
consideration  for  the  purchase  through  the  fraudulent  repre- 
sentations, and  if  joint,  it  could  not  be  divided  by  mere  acts 
of  the  purchasers.  That  it  was  in  them  jointly  hardly  admits 
of  question.  It  was  a  joint  purchase,  a  joint  contract.  If,  after 
the  conveyance  was  made,  they  had  failed  to  pay  the  considera- 
tion, the  cause  of  action  to  recover  it  would  have  been  against 
them  jointly,  and  not  severally.  Their  joint  interests  were 
prejudiced  by  the  fraud;  the  wrong  was  against  them  as  joint 
contractors.  The  case  is  not  affected  by  the  fact  that,  aftei-  the 
conveyance  to  them,  the  statute  annexed  to  their  title  the  in- 


Sec.  2.]  Joinder  of  Parties.  185 

cidents  of  a  tenancy  in  common  and  not  of  a  joint  tenancy,  but 
must  be  governed  by  the  character  of  the  transaction  as  between 
them  and  defendants.  The  demurrer  for  defect  of  parties 
should  have  been  sustained. 

Order  reversed. 


BORT  V.  YAW. 

Supreme  Court  of  Iowa,  1877.     46  Iowa  323. 

These  plaintiffs  allege  that  they  bought  of  the  defendant 
two  promissory  notes,  one  for  the  sum  of  $240.00,  executed  by 
James  Evart,  and  one  for  $51.97,  executed  by  Eden  R.  Latta; 
that  the  defendant,  willfully  and  fraudulently  to  cheat  and  de- 
fraud plaintiffs,  represented  that  the  makers  of  the  notes  were 
perfectly  responsible ;  that  the  representations  were  false,  the 
makers  at  the  time  being  insolvent ;  that  plaintiffs,  by  reason 
of  said  false  representations,  were  induced  to  purchase  the 
notes.  A  writ  of  attachment  was  sued  out  and  levied  upon  the 
property  of  defendant.  The  evidence  being  introduced,  the 
court  upon  motion  of  defendant  dissolved  the  attacliment,  for 
the  reason  that  no  order  therefor  was  made  by  a  judge  of  court. 
The  court  also,  on  motion,  dismissed  the  cause,  for  the  reason 
that  there  is  a  misjoinder  of  parties  plaintiff.  The  court, 
thereupon,  rendered  judgment  against  plaintiffs  for  costs.  The 
plaintiffs  appeal. 

Day,  Ch.  J. :  The  evidence  shows  the  folowing  facts :  At 
the  time  of  the  transaction  complained  of  Yaw  owed  Baldwin 
for  a  couple  of  colts,  and  was  negotiating  for  the  purchase  of  a 
colt  from  Baldwin  and  also  for  the  purchase  of  one  from  the 
plaintiff  Bort.  He  proposed  to  turn  over  the  Evart  note  for 
the  colts  and  what  he  owed  Baldwin.  Whilst  the  negotiation 
was  pending,  Bort  proposed  to  sell  to  defendant  a  piano  for 
$200,  and  defendant  offered  him  the  balance  of  the  Evart  note, 
the  Latta  note,  and  his  own  note  for  $91.00.  This  proposition 
was  accepted.  The  plaintiff,  Baldwin,  for  his  colt  and  what  de- 
fendant already  owed  him,  obtained  a  part  interest  in  the  Evart 
note.  The  plaintiff,  Bort,  for  his  colt  and  piano,  obtained  the 
balance  of  the  Evart  note,  the  Latta  note,  and  the  note  of  de- 


13 


186  Parties  to  Actions.  [Chap.  II. 

fendant.  The  trades  were  made  at  the  same  time,  but  they 
were  wholly  distinct.  Bort  had  no  interest  in  Baldwin's  trade 
and  Baldwin  had  no  interest  in  Bert's  trade. 

It  was  during  these  trades  that  the  false  and  fraudulent  rep- 
resentations complained  of,  as  to  the  solvency  of  the  makers  of 
the  notes,  were  made. 

This  action,  it  must  be  observed,  is  not  brought  upon  either 
of  the  notes,  but  is  brought  to  recover  damages  sustained  by 
the  fraudulent  representations,  whereby  plaintiffs  were  in- 
duced to  part  with  their  property.  There  is  no  pretense  that 
either  plaintiff  had  any  interest  in  the  property  of  the  other. 
The  false  representations  gave  each  a  right  to  an  action  for 
the  damages  he  sustained,  but  did  not  give  them  any  right  to 
maintain  a  joint  action.  The  damages  were  just  as  distinct 
as  those  arising  from  slanderous  words,  at  the  same  time  spoken 
of  two  persons.  See  Hinkle  v.  Davenport,  38  Iowa  355.  We 
have  here  the  union  of  two  separate  and  distinct  causes  of 
action  existing  in  favor  of  distinct  parties,  neither  having  any 
interest  in  the  cause  of  the  other.  It  is  claimed  that  under 
section  2649,  2650  of  the  Code  the  objection,  not  having  been 
taken  by  either  demurrer  or  answer,  is  waived.  But  this  is 
not  a  case  of  defect  of  parties,  as  contemplated  in  section  2648, 
but  a  misjoinder  of  parties.  An  amendment  might  have  been 
made  by  striking  out  the  name  of  one  of  the  parties,  or  dismiss- 
ing the  cause  of  action  as  to  one.  Hinkle  v.  Davenport,  supra. 
But  this  w^as  not  done,  and  both  parties  stood  before  the  court 
asking  judgment.  In  Cogswell  v.  IVlurphy,  p.  44,  ante,  it  was 
held  that  judgments  could  not  be  rendered  against  three  de- 
fendants, for  damages  done  by  their  cattle,  the  proof  showing 
that  each  defendant  owned  some  of  the  cattle,  and  that  none  of 
them  were  jointly  owned  by  the  defendants.  That  was  a  case 
in  which  separate  actions  should  have  been  brought  against  the 
defendants;  this  is  one  in  which  separate'  actions  should  have 

3  And  so  in  Gray  v.  Rothschild,  joined  in  an  action  for  damages 
112  N.  Y.  668,  (1889)  where  sev-  for  fraud  by  which  the  husband 
eral  firms  had  been  induced  to  ex-  had  been  induced  to  convey  his 
tend  credit  to  a  debtor  by  reason  land,  and  the  wife  to  release  her 
of  the  same  or  similar  false  repre-  dower  therein.  But  see  Reed  v. 
scntations.  See  also  Taylor  v.  Sang,  21  Wis.  678,  (1867),  that  in 
Brown,  92   Ohio  St.  287,   (1915).  such    a    case    the    wife    was    not    a 

In  Simar  v.  Canaday,  53  N.  Y.  proper  party  because  the  entire 
298,  (1873)  it  was  held  that  a  right  of  action  was  in  the  husband, 
husband    and    wife    were    properly 


Sec.  2.]  Joinder  op  Parties.  187 

been  brought  by  the  plaintiffs.  The  principle  involved  is  the 
same.  The  court  did  not  err  in  sustaining  the  motion  to  dis- 
miss the  cause.  The  cause  being  properly  dismissed,  the  rul- 
ing upon  the  motion  to  dismiss  the  attachment  becomes  immate- 
rial, and  it  is  not  necessary  to  review  it. 

Affirmed. 


SCHIFFER,  Adm'r.  v.  THE  CITY  OF  EAU  CLAIRE. 
Supreme  Court  of  Wisconsin,  J 881.     51  Wis.  385. 

The  action  is  brought  to  recover  damages  for  flooding  the 
plaintiff's  house  and  lot,  situate  in  tlie  city  of  Eau  Claire,  by 
the  maintenance  of  a  dam  across  tl)c  Chippewa  river  by  the 
defendant.  The  complaint  shows  that  the  premises  flooded  are 
a  lot  containing  one  acre  of  land,  Mitli  a  dwelling-house  and  ap- 
purtenances situate  thereon;  that  ojic  Winnard  Eller  owned  the 
same  in  fee:  that  he  died  intestate  in  1873,  and  left  a  widow, 
Magdalena  Eller,  and  seven  children,  his  only  heirs-at-law ;  and 
that  Otto  R.  Schiffer  is  the  duly  appointed  administrator  of  the 
estate  of  said  deceased.  The  widow,  children  and  administrator 
all  join  in  this  action  as  plaintiffs.  The  complaint  alleges  that 
the  house  and  a  quarter  of  an  acre  of  the  land  were  the  home- 
stead of  the  deceased  at  the  time  of  his  death,  and  the  widow  is 
entitled  to  an  estate  therein  during  her  widowhood,  and  that  she 
is  still  the  widow  of  the  deceased;  that  all  the  premises  have 
been  occupied  by  the  widow  and  her  children  ever  since  the 
death  of  the  deceased,  without  any  setting  apart  of  the  home- 
stead, or  the  widow's  dower  in  the  remainder  of  the  premises, 
and  were  so  occupied  at  the  time  of  the  injuries  complained  of. 
After  alleging  the  erection  and  maintenance  of  the.  dam  by  the 
defendant,  the  complaint  alleges  that,  by  reason  thereof,  the 
water  of  the  river  percolates  through  the  banks  of  the  river  and 
overflows  and  submerges  a  considerable  portion  of  the  premises, 
and  has  greatly  damaged  and  does  greatly  damage  the  same,  etc. 
*  *  * ;  and  that  thereby  the  plaintiffs  have  sustained  injury 
and  damage  in  the  sum  of  $1,200. 

To  this  complaint  the  defendant  demurred,  and  alleges  as 
grounds  of  demurrer,    (1)    that  several  causes  of  action  have 


188  Parties  to  Actions.  [Chap,  II. 

been  improperly  united  therein;  and  (2)  that  the  complaint 
does  not  state  facts  sufficient  to  constitute  a  cause  of  action. 
The  demurrer  was  overruled,  and  the  defendant  appealed  from 
the  order.*    *    *    * 

Taylor,  J. — The  appellant  insists  that  there  are  three  sep- 
arate causes  of  action  stated  in  the  complaint,  viz.:  (1)  a  cause 
of  action  in  favor  of  the  widow  alone  for  the  injury  done  to 
the  homestead;  (2)  a  cause  of  action  in  favor  of  the  children  of 
the  deceased  for  the  injury  done  to  tlie  estate  in  remainder,  as 
to  the  homestead;  and  (3)  a  joint  cause  of  action  in  favor  of 
the  widow  and  children  for  the  injury  done  to  the  three-fourths 
of  an  acre  which  is  not  a  part  of  the  homestead.  As  to  this  last 
cause  of  action  it  is  not  denied  that  the  widow  and  children  may 
properly  join  as  plaintiffs.  It  being  conceded  that  the  parties 
are  properly  joined  as  to  the  third  cause  of  action,  the  only 
question  to  be  determined  upon  this  appeal  is,  whether  the 
persons  owning  the  remainder  may  join  in  an  action  with  the 
person  owning  the  intervening  estate,  to  recover  damages  caused 
by  the  same  unlawful  act  of  the  defendant,  when  it  is  shown 
that  the  persons  ownmg  the  intermediate  estate  and  the  estate 
in  remainder  are  both  injured  by  such  act.  The  learned  counsel 
for  the  appellant  do  not  contend  that  an  action  cannot  be  main- 
tained by  the  person  owning  the  estate  in  remainder  during  the 
continuance  of  the  intermediate  estate,  when  the  injury  com- 
plained of  is  detrimental  to  the  estate  in  remainder.  That  such 
action  may  be  maintained  by  the  remainder-man,  especially 
against  a  stranger  to  the  title,  is  well  settled  by  the  authorities. 
Van  Deusen  v.  Young,  29  N.  Y.  9 ;  Pomf ret  v.  Ricroft,  1  Saun- 
ders 321,  note  322b;  Queen's  College  v.  Hallett,  14  East  489; 
Jackson  v.  Pesked,  1  Maule  &  Selwyn  234;  Chitty's  PI.  140. 

But  it  is  insisted  by  the  learned  counsel  for  the  appellant, 
that,  as  the  damages  which  the  remainder-man  can  recover  do 
not  belong  to  the  person  owning  the  intermediate  estate,  and 
vice  versa,  the  causes  of  action  are  separate  and  distinct  in  favor 
of  the  separate  plaintiffs,  and  cannot,  therefore,  be  joined.  It  is 
not  contended  that  if  this  were  an  action  to  abate  the  defend- 
ants dam  as  a  nuisance  to  the  plaintiffs,  they  could  not  all  prop- 
erly join  in  such  action  under  the  provisions  of  section  2602, 
K.  S.  1878.    See  Bliss  on  Code  Pleadings,  §  73,  and  cases  cited ; 

4  Statement    condensed  and  parts    of  opinion  omitted. 


Sec.  2.]  Joinder  of  Pakties.  189 

Williams  v.  Smith,  22  Wis.  594;  1  Wait's  Practice  112.  The 
section  reads  as  follows:  ''AH  persons  having  an  interest  in 
the  subject  of  the  action,  and  in  obtaining  the  relief  demanded, 
may  be  joined  as  plaintiffs,  except  as  otherwise  provided  by 
law."  But  it  is  argued  that  because  this  is  an  action  which  was 
formerly  denominated  an  action  at  law,  and  because  the  relief 
demanded  is  compensation  in  money  only  for  the  injury  sus- 
tained, and  because  the  money  recovered  will  belong  to  the 
plaintiffs  in  severalty  in  proportion  to  the  injury  each  has  sus- 
tained, the  plaintiffs  cannot  join  in  the  action.  Certainly  this 
objection  is  not  taken  in  the  interest  of  the  defendant,  and,  if 
it  must  prevail,  it  must  prevail  on  account  of  some  technical 
rule  which  remains  in  force  notwithstanding  the  code.  So  far  as 
the  defendant  is  interested,  it  would  seem  for  his  protection 
that  all  persons  whose  estate  or  interest  in  the  same  property 
has  been  injured  by  the  act  of  the  defendant,  should  join  in 
the  action.  The  judgment  would  bar  all  the  plaintiffs  and  save 
him  the  expenses  of  several  suits  instead  of  one.  In  such  case 
the  whole  damage  to  the  property  could  be  much  more  readily 
ascertained  than  if  the  court  and  jury  were  compelled  to  divide 
it  up  and  determine  how  much  the  injury  was  to  the  remainder- 
man, and  how  much  to  the  person  owning  the  intermediate 
estate.  That  there  might  be  difficulty  in  determining  the  rights 
of  the  plaintiffs,  as  between  themselves,  is  a  matter  which  does 
not  concern  the  defendant,  and  he  is  relieved  from  this  difficulty 
by  the  joinder  of  the  parties.  Bliss,  in  his  work  above  quoted, 
section  74,  says:  ''But  it  has  come  to  be  generally  conceded 
that  the  rule  under  consideration  is  universal  in  its  application, 
as  it  is  in  terms ;  and  if  two  or  more  are  interested  in  the  subject 
of  the  action,  and  in  the  relief  sought,  they  may  unite  as  plain- 
tiffs for  the  recovery  of  money  or  other  specific  real  or  personal 
property."  And  in  speaking  of  the  objection  as  to  the  difficulty 
of  adjusting  tlie  rights  of  the  plaintiffs  between  themselves,  he 
says:  "But  the  suggestion  supposes  that  the  several  rights  will 
always  be  ascertained  by  the  verdict.  While  in  many  cases  this 
may  be  done,  and  must  be  done  when  the  extent  of  the  liability 
depends  upon  the  amount  of  each  of  the  several  claims,  yet 
otherwise  and  in  other  cases  the  verdict  need  only  find  the  fact 
of  the  defendant's  liability  and  its  amount,  leaving  the  adjust- 
ment among  the  plaintiffs  to  be  made  by  themselves  after  judg- 
ment, or  by  the  court  before  it  is  entered."    *    *    * 


190  Parties  to  Actions.  [Chap.  II. 

In  the  case  at  bar,  the  subject  of  the  action  is  the  premises 
owned  by  the  plaintiffs,  and  the  cause  of  action  is  the  injury 
done  to  the  premises  by  a  single  act  of  the  defendant.  All  the 
plaintiffs  have  an  interest  in  the  subject  of  the  action,  and  in 
obtaining  the  relief  demanded,  and  are  properly  united  in  the 
action.  There  is,  therefore,  no  improper  joinder  of  causes  of 
action.  This  view  of  the  case  is  also  sustained  by  this  (3ourt  in 
Samuels  v.  Blanchard,  25  Wis.  329 ;  Bassett  v.  Warner,  23  Wis. 
673,  686 ;  Welch  v.  Sackett,  12  Wis.  243 ;  Stevens  v.  Campbell, 
13  Wis.  375;  Gates  v.  Boomer,  17  Wis.  455;  Peck  v.  School 
Dist.,  21  Wis.  516,  520 ;  and  in  the  following  cases  in  other 
courts:  N.  Y.  &  N.  H.  Railroad  Co.  v.  Schuyler,  17  N.  Y. 
592,  606 ;  Simar  v.  Canaday,  53  N.  Y.  298,  306 ;  Owen  v.  Frink, 
24  Cal.  171.5    *    *    * 

We  agree  with  the  learned  counsel  for  the  appellant  that  no 
cause  of  action  is  stated  in  the  complaint  in  favor  of  the  ad- 
ministrator; that  he  is  a  superfluous  party;  and  that  such  a 
superfluity  of  parties  cannot  be  taken  advantage  of  by  the 
demurrer  of  the  defendant  filed  in  this  action.  Marsh  v.  Super- 
visors, 38  Wis.  250;  Willard  v.  Reas,  26  Wis.  540. 

By  the  Court. — The  order  of  the  circuit  court  is  affirmed. 


HELLAMS  V.  SWITZER. 

Supreme  Court  of  South  Carolina,  1885.     24  S.  C.  39. 

Mr.  Justice  McGowan.^ — This  was  an  action  to  abate  an 
alleged  nuisance  and  for  damages  against  the  defendant  Switzer 
for  erecting  on  his  land  immediately  below  and  adjoining  the 
lands  of  the  first  named  plaintiff  a  dam  across  a  stream  known 
as  North  Raburn  Creek,  in  Laurens  County.  The  plaintiffs, 
R.  Y.  and  P.  M.  Hellams,  as  tenants  in  common  owned  one  tract 
of  land  immediately  above  the  land  of  the  defendant,  and  each 
of  the  other  nine  plaintiffs,  viz.,  W.  L.  Hopkins,  J.  R.  Brownlee, 
G.  W.  Anderson,  J.  R.  Childress,  D.  D.  Harris,  Hannah  Babb, 

6  See  also  Shepard  v.  Ry.,  117  N.  action  for  an  injunction  and  dam- 

N.  Y.  442,    (1889),  where  the   life  ages. 

tenant     and     remaindermen     were  6  Parts    of   the   opinion   omitted, 
permitted   to  join  in   an   equitable 


Sec.  2.]  Joinder  op  Parties.  191 

William  Hellains,  L.  R.  Babb,  and  Gideon  Yeargin,  owns  a 
separate  and  distinct  parcel  of  land  on  the  creek  above  the 
aforesaid  dam,  and  none  of  them  has  any  interest  in  the  lands 
of  either  of  the  others  named. 

The  plaintiffs  all  unite  in  one  complaint  and  in  stating  one 
cause  of  action.     *     *     * 

The  defendant  demurred  to  the  complaint  upon  the  ground 
"that  several  causes  of  action  were  improperly  united  in  this, 
that  it  appears  upon  the  face  of  the  complaint  that  the  several 
plaintiffs  are  owners  of  separate  and  distinct  tracts  of  land, 
and  that  one  plaintiff  has  no  interest  in  the  lands  of  the  others, ' ' 
&c.  On  hearing  the  cause.  Judge  Pressley  passed  the  following 
order:  "It  is  ordered  and  adjudged,  that  the  first  ground  of 
demurrer  be  overruled.  It  is  further  ordered  and  adjudged, 
that  the  second  ground  of  demurrer  be  sustained,  with  leave  to 
the  plaintiffs  to  amend  their  complaint  if  they  desire  to  do  so." 

The  plaintiffs  and  defendant  both  appeal — the  plaintiffs  on 
the  ground  that  his  honor  erred  in  holding  that  the  complaint 
did  not  state  facts  sufficient  to  constitute  a  cause  of  action ;  the 
defendant  on  the  ground  that  his  honor  erred  in  overruling  the 
written  demurrer  of  the  defendant,  and  in  not  holding  that 
several  causes  of  action  had  been  improperly  united.     *     *     * 

The  action  being  for  damages  on  account  of  a  private  nuisance 
and  to  abate  the  same,  must  be  considered  to  be  an  action  at 
law,  such  as,  under  the  old  procedure,  would  have  been  called 
"an  action  on  the  case."     *     *     * 

Being,  then,  an  action  at  law,  it  is  perfectly  plain  that,  ac- 
cording to  the  old  procedure  it  would  be  a  misjoinder  to  unite 
in  one  action  two  or  more  plaintiffs,  having  separate  and  distinct 
rights  in  parcels  of  land  claimed  to  be  injured  by  the  same 
cause.  Mr.  Pomeroy  says:  "The  requirements  of  the  common 
laAv  rules  that  all  persons  jointly  interested  shall  unite  as  plain- 
tiffs in  any  action  brought  to  maintain  the  interest,  and  that 
in  the  ease  of  a  several  right,  each  separate  holder  of  it  should 
sue  alone,  was  very  peremptory,  and  upon  these  wore  based 
the  form,  extent,  and  even  possibility  of  the  judgment  to  be 
rendered.  *  *  *  Persons  jointly  entitled,  or  having  a  joint 
legal  interest  in  the  property  or  other  rights  aff'eeted  b}'  a  tort, 
must  join  in  actions  brought  to  recover  damages  therefor.  On 
the  other  hand,  when  the  interest  and  right  and  the  damafzes 
are  both  several,  each  person  w^io  has  suffered  the  wrong  must 


192  Parties  to  Actions.  [Chap.  II. 

sue  separately.  In  accordance  with  this  principle,  two  or  more 
plaintiffs  cannot  in  general  sue  for  torts  to  tlie  person  or  char- 
acter, such  as  assaults,  libel,  slander,  and  the  like,"  &c.  Pom. 
Rem.  §§  184,  189. 

But  the  code  has  changed  in  some  respect  the  modes  of  pro- 
cedure, and  the  question  now  is,  whether  it  has  so  changed  the 
law  in  relation  to  parties,  as  to  allow  a  number  of  plaintiffs, 
having  no  interest  in  common,  but  separate  and  distinct  rights, 
to  unite  in  one  action  for  damages  in  bulk,  to  their  respective 
rights  of  person  and  property,  alleged  to  proceed  from  the  same 
cause.    A  careful  examination  of  the  code  will  disclose  the  fact 
that  it  does  not  in  terms  repeal  the  old  law  as  to  parties,  which, 
as  we  suppose,  is  still  the  law  wherever  it  has  not  been  super- 
seded or  repealed  by  necessary  implication.     The  question  is 
really  one  of  construction  as  to  how  far  the  code  has  abrogated 
or  modified  the  old  rule  upon  the  subject.    Section  138  provides 
that,  "All  persons  having  an  interest  in  the  subject  of  the  ac- 
tion, and  in  obtaining  the  relief  demanded,  may  be  joined  as 
plaintiffs,   except  as  otherwise  provided  in  this  title."     And 
section  140  declares,  "Of  the  parties  to  the  action,  those  who 
are  united  in  interest  must  be  joined  as  plaintiffs  or  defendants ; 
but  if  the  consent  of  anyone,  who  should  have  been  joined  as 
plaintiff,  cannot  be  obtained,  he  may  be  made  a  defendant,  the 
reason  thereof  being  stated  in  the  complaint;   and  when  the 
question  is  one  of  a  common  or  general  interest  of  many  per- 
sons, or  where  the  parties  are  very  numerous,  and  it  may  be 
impracticable  to  bring  them  all  before  the  court,  one  or  more 
may  sue  or  defend  for  the  benefit  of  the  whole. ' ' 

These  provisions  are  certainly  very  vague  and  indefinite.  The 
object,  doubtless,  was  to  simplify  the  procedure,  but  it  seems 
to  us  that,  in  this  instance  at  least,  it  was  not  attained.  There 
is  certainly  upon  this  point  as  much  confusion  and  obscurity 
now  as  before  the  adoption  of  the  code.  These  sections  of  our 
code  are  substantially  the  same  as  those  of  the  code  of  New  York, 
and,  indeed,  of  most  of  the  states,  which  have  adopted  the  re- 
formed procedure.  We  might,  therefore,  have  expected  to  find 
some  uniformity  in  the  decisions,  but  such  is  not  the  case.  No 
parts  of  the  codes  have  excited  more  discussion  or  difference  of 
opinion  in  the  courts.  These  provisions  as  to  parties  were 
manifestly  modelled  upon  the  old  practice  in  equity  which,  from 
the  nature  of  its  issues  and  especially  the  mode  of  trial,  was 


Sec.  2.]  Joinder  op  Parties.  193 

flexible,  allowing  the  chancellor  to  decide  the  rights  of  all  par- 
ties whether  they  were  before  him  as  plaintiffs  or  defendants; 
and,  therefore,  while  it  was  important  to  have  all  the  parties  in 
interest  before  the  court,  it  was  not  considered  necessary  to  dis- 
tinguish nicely  as  to  the  nature  and  extent  of  their  interest,  or 
whether  they  were  plaintiffs  or  defendants.  For  this  reason, 
probably,  it  was  soon  foimd  that  there  was  no  serious  difficulty 
in  applying  the  new  rules  of  the  code  to  proceedings  which  were 
purely  equitable  in  their  character  and  prayed  only  equitable 
relief.  And  it  will  be  observed  that  the  section  from  Pomeroy 
(2G9),  cited  by  the  plaintiffs  as  authority  for  the  joinder  in 
this  case,  is  found  under  the  head  of  parties  "plaintiff  in  equi- 
table actions." 

But  great  difficulty  arose  in  application  of  the  code  rules 
taken  from  equity  to  law  cases  for  enforcing  legal  rights,  in 
which  the  decision  is  not  by  the  chancellor,  but  by  the  jury, 
with  less  liberty  of  action  and  without  the  power  to  apportion 
damages  among  joint  plaintiffs.  See  Bannister  v.  Bull,  16  S.  C. 
230.  This  difficulty  was  felt  from  the  beginning,  and  at  least 
three  States  (Ohio,  Indiana  and  Wisconsin)  still  hold  that  the 
provisions  of  the  code  as  to  parties  were  not  intended  to  applj- 
to  law  cases,  involving  rights  purely  legal,  but  only  to  continue 
the  same  practice  which  had  prevailed  before,  in  proceedings 
equitable  in  their  nature,  after  the  code  prescribed  one  form 
of  action  for  all  alike.  Pom.  Rem.  §§  213  and  215.  But  the 
code  does  not  make  any  such  exception,  and  it  seems  that  in 
conformity  with  its  terms  the  weight  of  authority  is  in  fa\-or 
of  applying  the  provisions,  as  far  as  practicable,  to  all  actions 
alike,  legal  as  well  as  equitable. 

It  does  not,  however,  follow  that  the  rules  of  the  code  abolish 
entirely  the  common  law  requirements  in  actions  strictly  legal. 
"It  must  be  observed,  in  this  connection,  that  in  a  vast  number 
of  actions  strictly  legal  the  equitable  theory  of  parties,  as  stated 
in  these  clauses,  would  determine  the  proper  parties  thereto,  in 
exactly  the  same  manner  as  the  common  law  theory."  Pom. 
Rem.  §  122.  This  is  certainly  not  a  case  under  the  "common 
or  general  interest"  clause,  in  which  one  or  more  miglit  sue 
for  the  benefit  of  all.  Warren  v.  Raymond,  17  S.  C.  204.  It 
is  a  case  in  which  the  inquiry  is,  whether  all  the  plaintiffs  have 
such  "an  interest  in  the  subject  of  the  action  and  in  the  relief 


194  Parties  to  Actions,  [Chap.  II. 

demanded''  as  authorize  them  to  unite  in  a  joint  action  for 
joint  damages  and  to  abate  the  alleged  nuisance. 

"Without  going  into  the  learning  upon  the  subject,  or  endeav- 
oring to  reconcile  the  conflicting  decisions,  it  will  be  sufficient 
for  the  purposes  of  this  ease  to  quote  the  rule  as  laid  down  by 
Mr.  Pomeroy,  the  greatest  expounder  of  the  codes  and  an  en- 
thusiastic defender  of  its  principles  and  procedure.     In  refer- 
ence to  actions  by  persons  haAdng  several  rights  arising  from 
personal  torts,  he  says :    ' '  Where  a  personal  tort  has  been  done 
to  a  number  of  individuals,  but  no  joint  injury  has  been  suffered 
and  no  joint  damages  sustained   in   consequence  thereof,   the 
interest  and  right  are  necessarily  several,  and  each  of  the  in- 
jured  parties   must   maintain   a  separate   action   for   his   own 
personal  redress.     It  follows,  therefore,  that  when  a  tort  of  a 
personal  nature,  an  assault  and  battery,  a  false  imprisonment, 
a  libel,  a  slander,  a  malicious  prosecution  and  the  like  [nuisance, 
we  suppose]  is  committed  upon  one  or  more,  the  right  of  action 
must,  except  in  a  very  few  special  cases,  be  several.     In  order 
that  a  joint  action  may  be  possible,  there  must  be  some  prior 
bond  of  legal  union  between  the  persons  injured,  such  as  a 
partnership  relation,   of  such   nature  that  the  tort  interferes 
with  it,   and  by  virtue  of  that  very  interference  produces   a 
wrong  and  consequent  damage  common  to  all.     *     *     *     The 
doctrine  above  stated  has  been  fully  recognized  and  asserted  by 
the  courts  since  the  codes  were  enacted.     A  fire  company,  a 
voluntary  association,  having  been  libelled,  a  joint  action  by 
its  members  to  recover  damages  against  the  libellor  was  held 
improper;  not  being  partners,  and  not  having  any  community 
of  legal  interest  whereby  they  could  suffer  a  common  wrong, 
the  right  of  action  was  several  and  each  must  sue  alone.     The 
same  rule  has  been  applied  in  the  case  of  two  or  more  persons, 
not  partners,  suing  jointly  to  recover  damages  for  a  malicious 
prosecution;   the   action  cannot  be  maintained."     Pom.   Rem. 
§  231;  Giraud  v.  Beach,  3  E.  D.  Smith  337;  Hinkle  v.  Daven- 
port, 38  Iowa  355 ;  Stepanck  v,  Kula,  36  Id.  563 ;  Rhoads  v. 
Booth,  14  Id.  576. 

In  the  last  case  cited,  three  plaintiffs  sued  jointly  for  a 
malicious  prosecution.  Wright,  justice,  said:  "As  a  rule,  it 
is  only  when  two  or  more  persons  are  entitled  to,  or  have  a 
joint  interest  in,  the  property  affected,  or  to  the  damages  to 
be   recovered,   that  they   can   unite   in   an   action.     Therefore, 


Sec.  2.]  Joinder  op  Parties.  195 

several  parties  cannot  sue  jointly  for  injuries  to  the  person,  as 
for  slander,  or  battery,  or  for  false  imprisonment.  For  words 
spoken  of  parties  in  their  joint  trade,  or  for  slander  of  title, 
they  may  sue  jointly ;  but  not  so  when  two  or  more  sue  for 
slanderous  words  which,  though  spoken  of  all,  apply  to  them 
all  separately;  or  in  case  of  false  imprisonment  or  a  malicious 
prosecution,  when  each,  as  individuals,  are  imprisoned  or  prose- 
cuted. The  principle  underlying  is,  that  it  is  not  the  act,  but 
the  consequences,  which  are  looked  at.  Thus,  if  two  persons 
are  injured  by  the  same  stroke,  the  act  is  one,  but  it  is  the  con- 
sequences of  that  act,  and  not  the  act  itself,  whicli  is  redressed ; 
and,  therefore,  the  injury  is  several.  There  cannot  be  a  joint 
action,  because  one  does  not  share  in  the  suffering  of  the  other." 
The  court  further  held  that  the  objection  might  be  taken  at  the 
trial. 

The  judgment  of  this  court  is,  that  the  judgment  of  the  Cir- 
cuit Court  be  affirmed ;  that  the  plaintiffs  may  amend  by  strik- 
ing out  all  the  plaintiffs  but  one,  or  otherwise,  if  so  advised. 


TROMPEN  V.  YATES. 

Supreme  Court  of  Nebraska,  1902.     66  Neh.  525. 

Hastings,  C.  :  This  was  an  action  brought  by  the  defendants 
in  error  jointly,  claiming  damages  for  the  conversion  by  plain- 
tiff in  error,  as  sheriff,  of  certain  goods.  February  18,  1897, 
Frances  E.  Price  gave  a  chattel  mortgage  on  her  stock  of  drugs 
in  the  store  at  the  corner  of  Tenth  and  P  streets,  in  the  city  of 
Lincoln  Neb.,  for  $500,  to  her  husband,  J.  W.  Price.  The  same 
day  she  also  executed  a  chattel  mortgage  on  the  same  drugs  to 
J.  R.  Nichols  for  $100,  for  services  as  a  clerk  in  the  store ;  also 
to  Chas.  Yates  for  $40,  for  services  in  the  store;  also  to  J.  D. 
Johnson  for  $25,  for  grocery  bill;  also  to  Victor  "Weiler  for 
$20,  borrowed  money;  also  to  W.  L.  Garten  for  $30,  borrowed 
money ;  also  to  C.  M.  Seitz  for  $20,  grocery  bill ;  and  also  to  F. 
J.  Kelley  for  $350.  Of  this  amount  $266  was  claimed  to  be 
due  for  past  services,  $40  for  borrowed  money,  and  the  remain- 
der for  contemplated  services  in  upholding  the  transfers;  but 
on  this  indebtedness  to  Kelley  was  to  be  credited  $90.15,  store 


196  Parties  to  Actions.  [Chap.  II. 

account.  A  mortgage  was  also  made  to  the  Lincoln  Drug  Com- 
pany for  $110,  and  to  W.  E.  Clarke  for  $350,  and  to  Kipp  Bros, 
for  $110,  to  secure  indebtedness  due  them.  The  execution  and 
filing  of  the  mortgages  were  without  the  knowledge  of  the  mort- 
gagees, except  Price,  Nichols,  Weiler,  and  Kelley;  but  the 
action  was  ratified  subsequently  by  all  of  the  other  mortgagees, 
who  were  parties  to  this  action.  The  mortgages  of  Price, 
Nichols,  Kelley,  and  Yates  were  all  filed  at  2:35  p.  m. ;  the 
mortgages  of  Johnson,  Weiler,  Seitz  and  Garten  at  2 :40  p.  m., 
and  those  of  the  Lincoln  Drug  Company,  Clarke  and  Kipp 
Bros,  at  2:45  p.  m.,  on  February  20,  1897.  The  mortgagee 
Kelley  claimed  to  have  taken  possession  of  the  stock  of  goods 
on  behalf  of  the  mortgagees  innncdiately  on  the  filing  of  the 
instruments,  and  to  have  placed  an  inscription  on  the  front 
door,  ' '  Closed  under  Chattel  Mortgage. ' '  He  claims  to  have  re- 
tained such  possession  until  the  goods  were  levied  upon  by 
Sheriff  Trompen.  The  remnant  of  the  goods  left  by  the  sheriff 
he  claims  to  have  sold  for  $585,  and  with  the  proceeds  paid 
$100  to  Nichols  and  $485  to  Price.  The  answer  alleges  a  mis- 
joinder of  causes  of  action;  a  misjoinder  of  parties  plaintiff. 
*  *  *  The  petition  of  the  plaintiffs  below  alleged  that  they 
were  in  the  actual  possession  of  the  goods,  and  that  these  were 
Avrongfully  taken  away  from  their  possession  by  the  defendant 
sheriff.  Copies  of  their  several  mortgages  were  attached.  A 
motion  was  filed  by  the  sheriff  to  require  the  plaintiffs  to  more 
specifically  state  in  what  manner  he  had  taken  possession  of  the 
goods;  to  state  particularly  what  merchandise  was  taken  under 
execution,  and  what  under  attachment.  A  demurrer  was  also 
filed.  First,  that  there  was  a  defect  of  parties  plaintiff;  and, 
second,  that  the  petition  did  not  state  facts  sufficient  to  con- 
stitute a  cause  of  action  in  favor  of  plaintiffs.  Both  motion 
and  demurrer  were  overruled,  and  the  defendants  then  an- 
swered as  above  stated. 

Two  briefs  have  been  filed  on  behalf  of  tlie  plaintiff  in  error, 
in  one  of  whidi  the  sole  question  argued  is  the  alleged  mis- 
joinder of  the  plaintiffs.  It  is  urged  that  section  40  of  our 
Code  of  Civil  Procedure  furnishes  no  warrant  for  joining  these 
plaintiffs,  because  they  have  no  common  right ;  that  their  mort- 
gages were  filed  at  different  times,  and  their  holding  cannot  be 
joint.    The  result  does  not  seem  necessarily  to  follow  even  from 


Sec.  2.]  Joinder  of  Parties.  197 

holding  their  mortgages  separate  and  distinct  liens  upon  the 
same  property. 

They  allege  a  joint  possession,  M'hich  they  say  the  sheriff  has 
invaded.  If,  in  fact,  they  were  in  the  joint  possession  of  these 
goods,  and  the  sheriff  wrongfully  took  them,  it  would  seem 
to  constitute  a  common  wrong  against  all  the  tenants  who  were 
jointly  holding.  Each  would  have  a  joint  interest  with  all  the 
others  in  vindicating  their  joint  possession.  Their  case  would 
seem  to  come  distinctly  within  the  terms  as  well  as  the  spirit 
of  section  40  of  the  Nebraska  Code  of  Civil  Procedure.  The 
question  seems  to  be  argued,  however,  as  if  there  has  been  no 
attempt  to  take  possession,  and  the  plaintiffs  were  simply  trying 
in  this  action  to  vindicate  a  right  under  their  several  mort- 
gages. Even  if  such  were  the  case,  we  think,  under  the  hold- 
ings of  this  court  in  Earle  v.  Burch,  21  Neb.  710  (33  N.  W. 
254),  and  in  the  earlier  case  of  Kaufman  v.  Wessel,  14  Neb.  162 
(15  N.  W.  219),  and  the  approval  that  has  been  often  given  to 
both  these  cases,  that  this  court  is  committed  to  the  applying 
in  law  actions  of  the  equity  doctrine  that  interest  in  the  sub- 
ject of  the  action  gives  a  right  to  join  as  plaintiff.  Earle  v. 
Burch  certainly  holds  that  successive  mortgagees,  merely  as 
such,  and  where  possession  has  not  been  had  on  any  of  the 
mortgages,  may  join  in  replevying  the  property.  If  in  a  re- 
plevin action,  why  not,  then,  in  one  for  conversion?  A  distinc- 
tion is  sought  to  be  made  in  the  nature  of  the  relief  sought,  in 
the  one  case  an  indivisible  possession  of  the  property  which  is 
the  common  subject  of  the  plaintiff's  rights;  in  the  other  a  lump 
sum  of  money,  in  which  plaintiffs  have  separate  and  possibly 
conflicting  rights.  But  we  have  section  429  of  the  Code,  pro- 
viding expressly  for  this  situation,  and  apparently  adopted  with 
precisely  this  extension  of  equity  ideas  to  law  cases  in  view.  It 
provides:  "Judgment  may  be  given  for  or  against  one  or  more 
of  the  several  plaintiffs,  and  for  or  against  one  or  more  of 
several  defendants ;  it  may  determine  the  ultimate  riglits  of 
the  parties  on  either  side,  as  between  themselves,  and  it  may 
grant  to  the  defendant  any  affirmative  relief  to  which  he  may 
be  entitled.  In  an  action  against  several  defendants,  the  court 
may  in  its  discretion  render  judgment  against  one  or  more  of 
them,  leaving  the  action  to  proceed  against  the  others,  whenever 
a  several  judgment  may  be  proper.  The  court  may  also  dismiss 
the  petition  with  costs,  in  favor  of  one  or  more  of  the  defend- 


198  Parties  to  Actions.  [Chap.  II. 

ants,  in  case, of  unreasonable  neglect  on  the  part  of  the  plain- 
tiff to  serve  the  summons  on  other  defendants,  or  to  proceed  in 
the  cause  against  the  defendant  or  defendants  served."     Coun- 
sel say  that  these  several  lienholders  have  a  common  interest  in 
the  possession  which  is  the  subject  of  the  action  in  replevin,  but 
none  in  the  whole  amount  of  damages  recoverable  for  the  con- 
version.    But   what  more   interest  has   one   lienholder  in   the 
other's  possession  than  he  has  in  the  other's  recovery  of  dam- 
ages ?    The  truth  seems  to  be  that  the  equity  practice  of  taking 
into  the  action  everybody  who  claims  an  interest  in  its  subject- 
matter  was  the  object  aimed  at  in  these  Code  provisions,  and 
this  court  seems  to  have  carried  them  out  according  to  their 
letter  and  spirit.     In  Lancaster  Co.  v.  Rush,  35  Neb.  119   (52 
N.  W.  837),  the  city  of  Lincoln  was  joined  with  the  county  in 
foreclosing  a  tax  lien.     This  court  says  that  the  city  need  not 
have  joined,  but,  as  it  had  an  interest  in  the  sale  certificate  to 
the  amount  of  its  taxes,  it  properly  might  do  so,  under  section 
40  of  the  Code.     Other  jurisdictions  have  applied  similar  Code 
provisions  in  the  same  way.    In  Munson  v.  Railway  Co.  (Sup.) 
65  N.  Y.  Supp.  848,  it  is  held  that  an  insurer,  who  has  paid  in 
part  for  property  destroyed  by  the  railway  company's  fault, 
can  join  in  an  action  for  damages.     A  similar  case  is  Railway 
Co.  V.  Miller  (Tex.  Civ.  App.)   66  S.  W.  139.     In  England,  in 
1899,   under  similar  statutory   provisions,   it   was  declared   in 
Ellis  V.  Bedford,  68  Law  J.  Ch.  289,  "All  persons  having  a 
common  right  which  is  invaded  by  a  common  enemy,  although 
they  may  have  different  rights  inter  se,  are  entitled  to  join  in 
respect  to  that  common  right."    In  that  case  the  common  right 
was  to  the  use  of  stalls  in  a  market,  and  a  part  of  the  invasion 
was  the  exaction  of  illegal  tolls  for  its  use  from  the  different 
plaintiffs.     In  Railway  Co.  v.  Haber  (Kan.)   44  Pac.  632,  the 
joining  of  145  parties  in  one  action  for  damages  by  reason  of 
the  introduction  of  cattle  having  the  splenic  fever,  and  which 
communicated  that  disease  to  native  cattle,  was  upheld.     It  is 
not  thought  that  there  was  error  in  permitting  the  joint  action 
of  plaintiffs  in  this  case.     Counsel  for  the  sheriff  insist  that  the 
case  of  Gray  v.  Rothschild,  48  Hun  596,  1  N.  Y.  Supp.  299,  is 
entirely  parallel  to  the  one  at  bar,  and  should  control  it.    There 
is,  however,  a  very  manifest  distinction  between  the  two  eases. 
The  New  York  case  was  brought  by  creditors  who  had  sold 
goods  to  the  defendants.     These  goods  were  made  away  with 


Sec.  2.]  Joinder  of  Parties.  199 

fraudulently.  The  creditors  joined  in  an  action  for  their  value. 
It  was  lield  that  it  could  not  be  maintained.  The  right  of  each 
plaintiff  went,  not  to  the  whole  goods,  but  only  to  the  part  of 
them  bought  from  himself.  In  the  present  case  such  right  as 
each  mortgagee  had,  went  to  the  entire  lot  of  goods.  Where  to 
this  is  added  joint  possession,  the  right  to  recover  jointly  for 
their  taking  seems  complete.' 

Judgment  affirmed. 


PETTIBONE  V.  EDWARDS. 
Supreme  Court  of  Wisconsin,  1862.    15  Wis.  95. 

This  was  an  action  to  foreclose  a  mortgage  given  to  secure 
three  notes,  payable  to  the  plaintiff  in  one,  two  and  three  years 
from  date,  the  last  of  which  only  was  alleged  in  the  complaint 
to  be  unpaid.  The  mortgagor  stated  in  his  answer  that  the 
second  note  was  unpaid  and  had  been  assigned  to  A.  Malvina 
Miles,  who  still  owned  it,  with  an  interest  in  the  mortgage  suf- 
ficient to  secure  it,  ''and  was  a  real  party  in  interest  in  the 
matters  in  controversy  in  said  action."  The  court  excluded 
evidence  of  the  facts  stated  in  the  answer,  on  the  ground  that 
they  did  not  show  a  defect  of  parties,  and  gave  judgznent  of 
foreclosure  for  the  amount  of  the  note  held  by  the  plaintiff. 

By  the  Court,  Cole,  J.  In  this  case  the  respondent,  entitled 
to  a  part  only  of  the  mortgage  money,  commenced  a  suit  to  fore- 
close the  mortgage  as  to  his  own  part  of  the  money.  It  appears 
that  the  mortgage  was  given  to  secure  the  payment  of  three 
promissory  notes.  The  first  note  seems  to  have  been  paid.  But 
it  was  alleged  in  the  answer  of  the  mortgagors,  and  evidence  was 
offered  on  the  trial  in  support  of  the  allegation,  that  when  the 
second  note  became  due,  the  mortgagor  not  being  able  to  pay 
it,  the  note  was  sold  by  the  respondent  to  one  A.  Malvina  Miles, 
and  an  interest  in  the  mortgage  sufficient  to  secure  the  payment 

7  Compare  State  ex  rel.  v.  Beas-  holding    a    first    mortgage    on    the 

ley,     57     Mo.     App.     570,     (1894),  stock    and    a    second    mortgage    on 

where  it  was  held  that  the  holder  the    fixtures   in   an    action    against 

of   a   first    mortgage    on    store   fix-  the  sheriflf  for  a  conversion  of  the 

tures,    could    not    join    with     one  stock  and  fixtures. 


200  Parties  to  Actions.  [Ch.vp.  II. 

of  the  same,  was  assigned  to  him  to  her.  The  Miles  note  being 
unpaid,  it  was  objected  that  there  could  be  no  foreclosure  of 
the  mortgage  for  the  third  note  without  making  A.  Malvina 
Miles  a  party  to  the  suit. 

It  seems  to  us  the  objection  was  weU  taken.  Mr.  Justice  Story, 
in  his  work  on  Equity  Pleadings,  section  201,  states  the  rule  as 
to  who  are  necessary  parties  plaintiffs  to  a  bill  to  foreclose  a 
mortgage,  as  follows:  "And  it  may  be  generally  stated  that  all 
persons  who  have  the  legal  interest  in  the  mortgage,  as  well  as 
those  who  have  the  equitable  interest  therein,  are  necssary  par- 
ties to  a  bill  to  foreclose.  There  can  be  no  redemption  or  fore- 
closure unless  all  the  persons  entitled  to  the  whole  mortgage 
money  are  before  the  court.  Thus,  for  example,  a  person  en- 
titled to  a  part  only  of  the  mortgage  money  cannot  file  a  bill 
to  foreclose  the  mortgage  as  to  his  own  part  of  the  money,  but 
all  the  other  persons  in  interest  must  be  made  parties. ' ' 

The  rule  is  laid  down  in  substantially  the  same  language  by 
Barbour,  in  the  second  volume  of  his  work  on  Chancery  Prac- 
tice, 174.  Monell  reiterates  the  same  doctrine,  2  Monell's  Prac- 
tice, 214.  See  also  1  Daniel's  Plead,  and  Practice,  263;  Ed- 
wards on  Parties,  pp.  45,  46  and  47.  To  the  same  effect  are  the 
cases  of  Lowe  v.  Morgan,  1  Br.  C.  R.  368 ;  Palmer  v.  The  Earl 
of  Carlisle  et  al,  1  Simons  &  Stuart  423;  Miller  v.  Henderson, 
2  Stock  Ch.  R.  (N.  J.)  320;  Davenport  v.  James,  7  Hare  249; 
Johnson  v.  Brown,  11  Foster,  405. 

These  authorities  clearly  sustain  the  position  that  the  re- 
spondent should  have  made  A.  Malvina  Miles  a  party  to  the 
foreclosure  suit.  A  part  of  the  mortgage  money  was  coming  to 
her.  If  she  refused  to  join  in  the  suit  as  party  plaintiff,  she 
might  have  been  made  defendant.  But  that  she  should  be  made 
a  party  to  the  foreclosure  suit,  either  as  plaintiff  or  defendant, 
in  order  that  complete  justice  may  be  done  between  the  parties, 
and  the  entire  subject  matter  of  the  litigation  disposed  of,  is  to 
our  minds  clear  upon  reason  and  authority.  For  suppose  a 
mortgage  given  to  secure  a  debt  payable  in  a  dozen  different 
installments,  evidenced  by  as  many  promissory  notes.  Is  the 
practice  to  be  tolerated,  when  all  the  notes  are  due,  of  harassing 
the  mortgagor  by  a  dozen  different  foreclosure  suits,  because  the 
notes  are  held  by  as  many  different  persons,  when  one  suit  would 
settle  the  whole  controversy,  and  do  complete  justice  ?  We  know 
of  no  beneficial  purpose  whatever  to  be  subserved  by  such  a 


Sec.  2.]  Joinder  of  Parties.  201 

practice.  The  costs  are  greatly  increased,  and  consequently  the 
security  for  the  debt  correspondingly  diminished.  And  the 
salutary  rule  that  all  persons  materially  interested  in  the  suit 
should  be  made  parties,  is  violated.  A.  Malvina  ^Miles  was  cer- 
tainly interested  in  the  foreclosure  of  the  mortgage.  A  portion 
of  the  money  secured  by  that  mortgage  was  coming  to  her.  She 
was  therefore  an  indispensable  party. 

The  judgment  of  the  circuit  court  is  reversed,  and  the  cause 
remanded  with  directions  to  that  court  to  order  the  holder  of 
the  second  note  secured  by  the  mortgage  to  be  made  a  party,  so 
that  there  may  be  a  complete  determination  of  the  matter  in 
controversy. 


LILLY  V.  TOBEIN. 
Supreme  Court  of  Missouri,  1890.    103  Mo.  477. 

Black,  j.s  *  *  *  To  the  original  petition  filed  in  this  cause 
the  defendants  demurred,  on  the  ground,  among  others,  that  the 
unincorporated  church  society  had  no  power  or  legal  capacity 
to  sue.  The  demurrer  was  sustained,  and  thereupon  an  amended 
petition  was  filed,  adding  as  plaintiffs,  John  J.  Lilly,  ]\Iichael 
Howell,  Patrick  O'Malley,  and  Thomas  Clark,  members  of,  and 
alleged  to  be  trustees  of  the  church.  These  persons  sue  for  them- 
selves and  all  other  members  of  the  association.  The  amended 
petition  also  names  one  hundred  or  more  persons,  members  of 
the  church,  as  additional  plaintiffs.  To  this  amended  petition 
the  defendant  demurred,  and  this  demurrer  was  sustained  as 
to  the  unincorporated  association,  but  overruled  as  to  the  new 
plaintiffs  brought  in  by  the  amended  petition.    *    *    * 

The  statute  allows  "any  person  interested  in  the  probate  of 
the  will"  to  prosecute  a  suit  to  contest  the  same,  or  to  have  one 
proved  which  has  been  rejected  by  the  probate  court.  Assuming 
that  the  church  is  capable  of  suing,  the  fact  that  it  is  by  the 
will  made  a  devisee  gives  to  it  an  interest  which  entitles  it  to 
prosecute  this  suit.  The  question  then  arises  whether  that  in- 
terest can  be  represented  by  the  present  plaintiffs. 

8  statement    and    parts    of    the   opinion  omitted. 


202  Parties  to  Actions.  [Chap.  II. 

It  appeared  in  the  former  suit,  as  it  does  noAA',  that,  at  the 
death  of  the  testator,  the  Catholic  Church,  at  Lexington,  was 
simply  an  unincorporated  religious  association.  Thereafter,  the 
members  of  the  church  organized  as  a  corporation,  and  that 
suit  was  instituted  by  the  incorporated  association.  It  was  held 
that  the  incorporation  of  the  plaintiff  did  not  vest  in  it  the 
property  rights  of  the  church  society,  and  for  that  reason  the 
plaintiff  could  not  maintain  the  suit.  Trustees  of  a  charity  are 
often  incorporated  for  the  purpose  of  executing  the  trust,  and, 
since  the  church  society  was  doubtless  incorporated  to  enable 
it  the  better  to  protect  the  devise  in  question,  the  correctness 
of  the  conclusion  reached  in  that  case,  as  to  the  rights  of  the 
corporation  to  prosecute  the  suit,  may  well  be  doubted.  It  was, 
however,  held  in  that  case,  and  we  think  correctly  held,  that 
the  church  society  did  not  lose  its  existence,  or  become  wholly 
merged  in  the  corporation. 

The  constitution  provides  that  "No  religious  corporation  can 
be  established  in  this  state,  except  such  as  may  be  created  under 
a  general  law  for  the  purposes  only  of  holding  the  title  to  such 
real  estate  as  may  be  prescribed  by  law  for  church  edifices,  par- 
sonages, and  cemeteries."  Art.  2,  sec.  8.  As  a  church  can  only 
be  incorporated  for  the  specified  purposes,  it  was  held  that  the 
church  organization  for  religious  purposes  must  continue  after 
incorporation.  In  view  of  an  intimation  then  made,  this  suit 
was  commenced  in  the  name  of  the  unincorporated  society,  but 
a  demurrer  to  the  petition  was  sustained  because  of  the  want  of 
capacity  in  the  plaintiff  to  sue.  It  is  now  insisted  that  Lilly, 
O'Malley,  Howell  and  Clark,  who  were  made  parties  plaintiff 
by  the  amended  petition  and  who  are  members  of  the  church  and 
sue  for  themselves  and  all  other  members  of  the  association  can- 
not prosecute  this  suit. 

It  is  a  well-established  rule  in  equity  pleading  that  one  or 
more  of  the  members  of  a  voluntary  association,^  whether  organ- 
ized for  public  or  for  private  purposes,  may  sue  for  and  in  be- 
half of  all  the  members.  Story  Eq.  Plead.  (9th  Ed.),  sees.  94 
and  114a.  The  right  of  a  few  persons  to  sue  for  themselves  and 
all  other  persons  similarly  situated  has  been  recognized  by  this 

9  "When  the  question  is  one  of  ticable    to   bring    them    all   before 

common     or     general     interest     to  the    court,    one    or    more    may    sue 

many  persons  constituting  a  class  or    defend    for    the    whole."    Eq. 

Bo  numerous  as  to  make  it  imprac-  Eule    38. 


Sec.  2,]  Joinder  of  Parties.  203 

court  on  several  occasions:  52  Mo.  81;  67  Mo.  203.  It  is  true 
that  this  is  an  equity  rule,  and  we  have  no  statute  extending  it 
to  actions  at  law,  as  is  the  case  in  some  of  the  states.  It  has 
also  been  said  in  several  cases  that  a  suit  to  contest  a  will,  or  to 
establish  one  which  has  been  rejected  by  the  probate  court,  is  an 
action  at  law.  Lyne  v.  Marcus,  1  Mo.  410;  Swain  v.  Gilbert, 
3  Mo.  347;  Young  v.  Ridenbaugh,  67  Mo.  574;  Mcllraith  v. 
Hollander,  73  Mo.  112.  Such  a  suit  is  doubtless  one  at  law  in 
the  sense  that  it  is  a  statutory  proceeding.  But  this  court  said 
in  the  case  of  Eddie  v.  Parke's  Ex'r,  31  Mo.  513,  which  was  a 
suit  to  contest  a  will :  ' '  Although  this  is  technically  a  proceed- 
ing at  law,  yet  in  many  respects  it  partakes  of  the  nature  o^  a 
proceeding  in  chancery,  and  the  rules  recognized  in  courts  of 
ecjuity,  with  respect  to  the  persons  necessary  to  be  made  parties 
to  a  bill,  we  think,  is  to  a  great  extent  applicable  to  a  case  of  this 
kind."  Looking  to  the  parties  who  should  be  brought  before 
the  court,  the  method  of  making  up  and  submitting  the  issue  of 
will  or  no  will,  and  the  character  and  form  of  the  judgment, 
we  can  but  conclude  that  a  suit  to  contest  or  establish  a  will  has 
many  of  the  features  of  a  suit  in  chancery ;  and  the  equity  rule 
allowing  one  or  more  members  of  a  voluntary  association  to  sue 
for  all  should  be  applied  to  cases  like  the  one  in  hand. 

It  results  from  what  has  been  said  that  it  is  a  matter  of  no 
consequence  that  some  of  the  other  named  plaintiffs  have  died 
or  ceased  to  be  members  of  the  church,  or  are  minors,  or  mar- 
ried women.  They  may  be  disregarded  as  unnecessary  par- 
ties.   *    *    * 

Judgment  affirmed. 


GATES  V.  BOOMER. 

Supreme  Court  of  Wisconsin,  1863.    17  Wis.  470. 

By  the  Court,  Cole,  J.  The  first  objection  taken  to  the  com- 
plaint, on  the  demurrer  is,  that  the  court  has  no  jurisdiction  of 
the  cause.  The  complaint  is  filed  by  two  judgment  creditors  of 
Lyman  E.  Boomer,  for  the  purpose  of  setting  aside  and  having 
declared  void  a  deed  given  to  him  by  his  co-defendant,  on  the 
ground  that  it  is  fraudulent  and  void  as  to  creditors.     They 


204  Parties  to  Actions.  [Chap.  II. 

state  that  their  judgments  were  obtained  subsequent  to  the 
giving  of  said  deed ;  that  executions  have  been  issued  upon  them, 
and  returned  unsatisfied ;  and  that  the  judgment  debtor  has  left 
the  state  and  has  no  property  here  liable  to  seizure  and  sale. 
They  therefore  ask  that  the  deed,  which  is  an  obstruction,  be 
removed  so  that  they  can  enforce  their  liens  by  a  sale  of  the 
property  upon  execution.  This  general  statement  will  suffice  to 
understand  the  object  of  the  suit. 

We  think  the  facts  stated  in  the  complaint  bring  the  case 
within  an  ackowledged  head  of  equity  jurisdiction.  As  al- 
ready observed,  the  object  and  purpose  of  the  suit  is  to  clear 
the  real  estate  of  the  judgment  debtor  from  an  incumbrance 
fraudulently  and  improperly  placed  upon  it  to  the  injury  and 
prejudice  of  the  creditors.  It  is  said,  if  the  deed  be  void  in 
respect  to  creditors,  as  is  alleged,  that  then  this  suit  is  unneces- 
sary, since  there  is  no  obstacle  to  the  respondents  enforcing 
their  judgments  by  sales  upon  execution.  But  if  the  parties 
should  adopt  the  course  suggested,  still  it  is  very  obvious  that 
the  existence  of  the  deed  would  throw  doubt  and  uncertainty 
upon  the  title  and  might  prevent  bidding  entirely  at  the  sales. 

It  is  further  objected  that  there  is  a  defect  of  parties  plain- 
tiffs, and  that  it  was  irregular  for  the  two  judgment  creditors 
to  unite  in  the  action.  This  point  is  clearly  untenable.  Both 
plaintiffs  have  a  common  interest  in  removing  the  fraudulent 
cenveyance,  so  that  they  can  enforce  their  respective  judgments. 
And  aside  from  our  statute  we  think  there  would  have  been  no 
misjoinder  of  parties  plaintiffs.  See  case  in  3  Paige,  supra, 
(Clarkson  v.  Depeyster,  3  Paige,  320),  and  authorities  there 
referred  to.  But  our  statute  provides  that  all  persons  having 
an  interest  in  the  subject  of  the  action  and  in  obtaining  the 
relief  demanded,  may  be  joined  as  plaintiffs,  with  certain  ex- 
ceptions not  applying  to  this  case.  Sec.  18,  ch.  122.  This  pro- 
vision is  unquestionably  broad  enough  to  meet  the  case  at  bar, 
since  both  plaintiffs  have  a  direct  and  common  interest  in  the 
subject  matter  of  the  suit  and  in  the  relief  sought.  The  third 
objection,  to-wit,  that  several  causes  of  action  are  improperly 
united  in  the  complaint,  is  disposed  of  in  considering  the  ques- 
tion whether  or  not  there  was  an  improper  joinder  of  the  par- 
ties plaintiffs. 

The   next  objection,   that   the   several   causes   of   action   are 


Sec.  2,]  Joinder  of  Parties.  205 

not  separately  stated,^"  is  not  sustained  by  the  complaint, 
as  an  examination  of  its  various  allegations  will  abundantly 
show,     *    *    * 

Judgment  affinned. 


WHITE'S  BANK  OF  BUFFALO  v.  FARTHING. 
Court  of  Appeals  of  Neiv  York,  1886.    101  N.  Y.  344. 

Appeal  from  the  order  of  the  General  Term  of  the  Supreme 
Court,  in  the  fourth  judicial  department,  made  April  23,  1885, 
affinning  an  order  of  the  Special  Term  denying  motions  (under 
§  452  of  the  Code)  on  the  part  of  the  German-American  Bank 
of  Buffalo,  the  Merchants'  Bank  of  Buffalo  the  Third  National 
Bank  of  Buffalo,  and  others,  that  they  might  be  brought  in  as 
parties  defendant  herein. 

The  action  was  brought  by  plaintiff  as  judgment  creditor  of 
the  defendant  Matilda  Farthing,  to  set  aside  certain  conveyances 
of  real  estate  made  by  her,  which  were  alleged  to  be  fraudulent 
as  against  creditors,  and  for  the  sale  of  such  real  estate,  etc. ; 
also  to  have  plaintiff's  judgment  declared  to  be  a  lien  on  certain 
other  lands. 

The  facts  so  far  as  material  are  stated  in  the  opinion. 

Andrews,  J.  The  judgments  in  favor  of  the  German-Amer- 
ican Bank  were  recovered  November  13,  1883,  and  the  deficiency 
judgment  in  favor  of  the  banks  other  than  the  plaintiff  April  4, 
1884.  The  judgment  in  favor  of  the  plaintiff's  bank  was  re- 
covered February  4,  1884,  and  this  action  was  commenced  No- 
vember 14,  1884.  The  several  judgments  became  liens  on  lands 
fraudulently  conveyed  by  Matilda  Farthing,  the  judgment 
debtor,  in  the  order  of  their  docketing,  and  they  could  have 
been  sold  on  executions  issued  on  the  judgments.  The  plaintiff, 
however,  elected  to  bring  its  action  to  remove  the  alleged  fraud- 
ulent obstruction  created  by  the  conversances-  If  it  succeeds 
in  establishing  the  fraud,  it  will  be  entitled  to  a  judgment  set- 

10  See  also  South  Bend  Plow  Co.  equity      suit     to      establish     their 

V.  Cribb,  ante,  p.  37,  where  a  num-  respective     demands     against     the 

ber   of   simple   creditors   of   an   in-  debtor,    and   enforce   payment    out 

solvent    corporation    joined    in    an  of  property  fraudulently  diverted. 


206  Parties  to  Actions.  [Chap.  II. 

ting  aside  the  conveyances  simply,  in  which  case  it  can  proceed 
to  enforce  its  judgment  by  a  sale  of  the  land  on  execution,  un- 
embarressed  by  the  cloud  created ;  or  the  court  may  proceed 
further  and  compel  the  fraudulent  grantees  to  convey  the  lands 
to  a  receiver,  to  be  sold  to  satisfy  the  plaintiff's  judgment. 

The  judgments  in  favor  of  the  other  banks  will  in  no  way 
be  affected,  whichever  form  the  judgment  in  this  action  may 
take.  If  it  sirapl}^  sets  aside  the  fraudulent  conveyances,  the 
land  will  remain  charged  with  the  liens  of  the  several  judgments 
in  the  order  of  their  docketing,  and  the  proceedings  to  enforce 
them  will  be  regulated  by  the  statute.  If  it  goes  further,  and 
appoints  a  receiver,  and  directs  a  conveyance  to  him,  a  pur- 
chaser under  the  receiver's  sale  will  take  title  as  to  the  time  of 
the  debtor's  conveyance  to  the  receiver,  subject,  however,  to  the 
judgments  in  favor  of  the  banks  other  than  the  plaintiff.  Chau- 
tauqua Co.  Bank  v.  Risley,  19  N.  Y.  369.  The  result  of  the 
plaintiff's  action  will  not,  therefore,  affect  the  lien  of  the  judg- 
ments in  favor  of  the  other  banks  who  seek  to  intervene  in  this 
action. 

The  plaintiff  seeks,  also  to  charge  the  Swan  street  lot  with 
the  lien  of  its  judgment,  on  the  ground  that  Geo.  Farthing, 
caused  it  to  be  conveyed  to  Kelley  as  security  for  a  debt  owing 
by  him  to  Kelley,  which  has  been  since  paid,  and  that  the  judg- 
ment debtor,  Matilda  Farthing,  as  the  devisee  of  Geo.  Farthing, 
is  entitled  to  the  land.  The  other  banks  may  commence  similar 
actions  to  reach  the  Swan  street  lot,  and  the  plaintiff's  action, 
followed  by  judgment  in  accordance  with  the  relief  demanded, 
will  not  prejudice  any  rights  which  the  other  banks  may  have 
to  enforce  their  judgments  against  it.  According  to  the  rules 
established  in  this  state,  judgment  creditors  holding  distinct 
and  several  judgments  may  unite  in  an  action  to  set  aside  a 
conveyance  by  the  common  debtor,  made  in  fraud  of  their  rights 
as  creditors.  Brinkerhoff  v.  Brown,  6  Johns.  Ch.  139.  This 
is  a  convenient  rule,  but  it  is  not  a  rule  of  obligation,  but  one 
conferring  authority  only.  It  has  never  been  held  that  all 
judgment  creditors  so  situated  were  necessary  parties  to  such 
an  action.  We  think  section  452  of  the  code  does  not  require 
the  court,  on  application,  to  compel  a  plaintiff  to  bring  in  a 
judgment  creditor,  not  originally  made  a  party,  as  a  party  to  an 
action  instituted  by  him  to  set  aside  a  fraudulent  conveyance, 
although  its  power  to  direct  it  to  be  done  cannot  be  doubted. 


Sec.  2.]  Joinder  of  Parties.  207 

The  rights  of  the  creditor  not  made  a  party  will  not  be  prej- 
udiced by  the  judgment  in  that  action.  A  judgment  creditor 
has  no  title  to  the  land  of  the  judgment  debtor,  but  a  lien  only, 
which  may,  by  su])sequent  proceedings,  become  the  foundation 
of  title ;  nor  has  he  any  interest  in  the  subject  matter  of  the  ac- 
tion brought  by  another  judgment  creditor,  within  the  meaning 
of  that  section.  He  may  have  an  interest  which  will  be  sub- 
served by  having  the  conveyance  set  aside.  But  he  will  not  be 
concluded  by  a  denial  of  that  relief  in  the  action  of  the  other 
creditor,  and,  whatever  the  result  of  that  action  may  be,  his 
rights  and  remedies  remain  as  before. 

The  cases  of  People  v.  Albany  &  V.  R.  R.  Co.,  77  N.  Y.  232, 
and  Osterhoudt  v.  Supervisors,  etc.,  98  N.  Y.  239,  cited  by  the 
appellant,  are  not  analogous.  No  effectual  judgments  could  be 
rendered  in  those  actions  without  directly  cutting  off  or  impair- 
ing rights  of  persons  not  parties,  and  it  was  held,  in  accordance 
with  the  settled  rule  in  equity,  that  they  should  be  brought 
in  so  that  there  would  be  a  complete  determination  of  the 
controversy. 

We  think  the  order  appealed  from  was  discretionary,  and 
that  the  appeal  should,  therefore,  be  dismissed. 


JEFFERS  V.  FORBES. 
Supreme  Court  of  Kansas,  1882.     28  Kan.  174. 

Action  brought  by  Jeffers  and  thirteen  others  against  Forbes 
and  another,  to  set  aside  certain  deeds.  At  the  September  term, 
1881,  the  court  sustained  a  demurrer  to  plaintiff's  petition,  to 
which  ruling  they  excepted,  and  have  brought  the  case  here  for 
review. 

Brewer,  J.  The  plaintiffs  in  error  (plaintiffs  below)  were 
respectively  the  widow  and  children  of  A.  R.  Jeffers,  deceased, 
and  filed  their  petition  in  the  district  court  of  Doniphan  county, 
seeking  to  set  aside  six  several  deeds  executed  by  themselves 
separately  to  the  defendant,  W.  H.  Forbes,  and  also  a  subse- 
quent deed  from  W.  H.  Forbes  to  his  co-defendant,  B.  N. 
Forbes.  The  deeds  from  the  plaintiffs  were,  respectively,  a 
deed  from  the  widow,  four  separate  deeds  from  the  adult  chil- 


208  Pakties  to  Actions.  [Chap.  II. 

dren,  and  a  guardian's  deed  from  the  widow  as  guardian  for 
the  minor  children.  These  deeds  were  executed  at  different 
dates  and  places,  and  all  taken  together  convej^ed  a  full  title 
to  the  land  described  therein.  To  the  petition  defendants  de- 
murred on  the  ground  that  several  causes  of  action  were  im- 
properly joined,  and  also  that  the  petition  did  not  state  fc^ts 
sufficient  to  constitute  a  cause  of  action.  The  demurrer  was 
sustained,  and  plaintiffs  now  bring  the  question  here  for  re- 
examination. The  facts  as  disclosed  in  the  petition  are  briefly 
as  follows :  On  October  1,  1875,  A.  R.  Jeffers  was  the  owner  in 
fee-simple  of  a  tract  of  about  310  acres  in  Doniphan  county, 
Kansas,  and  on  that  day  he  and  his  wife  executed  a  mortgage 
to  the  Phoenix  Insurance  Company  to  secure  the  payment  of 
$3,300,  with  interest  at  10  per  cent.  They  also  executed  a  sec- 
ond mortgage  on  the  land  to  the  defendant,  W.  H.  Forbes,  for 
$428.  In  August,  1878,  A.  R.  Jeffers  died  intestate,  his  death 
being  sudden  and  from  accident,  while  away  from  home,  leav- 
ing the  plaintiffs  as  his  heirs,  and  also  leaving  personal  prop- 
erty more  than  enough  to  pay  and  discharge  all  debts  against 
the  estate,  as  well  as  all  expenses  of  administration.  Besides 
the  above  property  he  was  also  the  o-RTier  at  the  time  of  his 
death  of  an  unimproved  tract  of  forty  acres  in  Doniphan 
county,  worth  $10  per  acre.  Interest  had  been  paid  on  the 
insurance  company's  mortgage  up  to  April  1,  1878.  The  mort- 
gaged tract  had  been  occupied  by  A.  R.  Jeffers  and  his  family 
for  several  years  as  a  homestead,  and  continued  to  be  so  occu- 
pied by  the  widow  and  younger  children  after  his  death  until 
the  twelfth  day  of  March,  1879,  when,  by  fraud,  fraudulent  rep- 
resentation, threats,  and  duress  on  the  part  of  the  defendant, 
W.  H.  Forbes  they  were  dispossessed  by  him.  The  mortgaged 
tract  was  worth  at  the  time  of  the  death  of  said  A.  R.  Jeffers 
the  sum  of  $12,380,  and  the  annual  profits  were  $1,500.  This 
value  continued  up  to  the  time  of  the  execution  of  the  deeds 
complained  of,  and  was  well  known  to  the  defendants. 

A  few  weeks  after  the  death  of  said  A.  R.  Jeffers,  W.  H. 
Forbes  purchased  the  insurance  company's  mortgage,  represent- 
ing that  he  was  doing  so  as  a  matter  of  friendship  for  the 
widow  and  children.  After  obtaining  possession  of  this  mort- 
gage, the  attitude  of  Forbes  towards  the  family  suddenly 
changed.  He  became  hostile,  and  demanded  immediate  pos- 
session of  the  property  so  mortgaged,  falsely  representing  that 


Sec.  2.]  Joinder  op  Parties.  209 

the  indebtedness  of  the  estate  was  many  thousands  of  dollars 
more  than  it  was  two  years  after  found  to  be,   and  that  its 
aggregate  was  so  great  that  no  property,  either  real  or  personal, 
would  be  left  to  the  widow  or  children.     The  widow  being  old 
and  infirm,   little  versed  in  business  matters,  paralyzed,   and 
overwhelmed  with  distress  on  account  of  her  sudden  bereave- 
ment, ignorant  of  her  husband's  real  financial  condition  or  of 
her  rights  under  the  law,  being  without  means  at  that  time  to 
procure  counsel  of  her  own,  and  each  and  all  of  the  children 
being  young  and  unskilled  in  business,  and  fearing  that  de- 
fendant Forbes  could  and  would  proceed  to  dispossess  the  plain- 
tiff and  her  family,  and  under  the  duress  and  threats  of  said 
defendant  Forbes,  the  widow  and  adult  children  conveyed  by 
deeds  of  quitclaim  their  interest  in  the  mortgaged  tract,  and 
the  widow  was  persuaded  to  become  guardian   of  the   minor 
children,   and  to  institute   and   carry  through  proceedings   in 
the  probate  court  by  which  the  interests  of  said  minor  children 
were  also  conveyed  to  said  Forbes — the  sole  consideration  above 
the  mortgage  debts  received  by  said  grantors  being  a  tract  of 
forty  acres,  costing  $350,  which  said  Forbes  caused  to  be  con- 
veyed to  said  widow.     The  prayer  of  the  petition  was  that  all 
of  said  six  deeds  from  the  plaintiffs  to  W.  H.  Forbes,  and  that 
from  W.  H.  Forbes  to  his  brother,  be  cancelled  and  declared  void 
and  of  no  effect;  that  the  defendant  be  compelled  to  account 
for  the  use  and  occupation  of  the  lands  since  March  12,  1879, 
and  for  such  other  and  further  relief  as  might  be  deemed  just 
and  equitable. 

The  first  ground  of  demurrer,  as  heretofore  stated,  is  that 
several  causes  of  action  were  improperly  joined;  and  the  con- 
tention is  that  the  setting  aside  of  each  of  the  six  several  deeds 
from  the  plaintiffs  to  the  defendant,  W.  H.  Forbes,  was  a  sep- 
arate and  independent  cause  of  action,  in  which  only  the  grantor 
in  such  deed  had  any  interest.  On  the  other  hand,  it  is  insisted 
that  the  plaintiffs  together  were  the  owners  of  a  single  tract; 
that  but  a  single  contract  and  agreement  was  entered  into  be- 
tween them  and  the  defendant,  W.  H.  Forbes;  that,  in  pursu- 
ance of  such  single  contract  and  agreement,  the  various  interests 
held  by  the  several  plaintiffs  were  conveyed  to  said  Forbes; 
that  if  such  contract  and  agi-eement  was  fraudulent  and  void, 
the  plaintiffs  had  a  joint  interest  in  having  it  so  adjudged,  and 
all  instruments  executed  to  carry  it  into  effect  canceled  and 


210  pAKTiEs  TO  Actions.  [Chap.  II. 

declared  null  and  void;  and  that,  therefore,  there  was  but  a 
single  cause  of  action,  in  which  all  the  parties  plaintiff  were 
interested,  and  to  enforce  which  they  may  unite  in  a  single 
action. 

We  think  the  contention  of  the  defendants  in  error  is  correct, 
and  that  the  ruling  of  the  district  court  must  be  sustained  on 
this  ground.     Section  35  of  the  code  prescribes  the  rule  as  to 
the  joinder  of  parties  plaintiff.    It  reads:    "All  persons  having 
an  interest  in  the  subject  of  the  action  and  in  obtaining  the 
relief  demanded  may  be  joined  as  plaintiffs,  except  as  otherwise 
provided  in  this  article. ' '    Now,  the  title  by  which  the  plaintiffs 
held  this  tract  was  that  of  tenants  in  common.     Each  owned  an 
individual  interest,  and  his  ownership  was  not  affected  in  the 
slightest  degree  by  the  question  as  to  who  held  the  title  of  the 
other  interests.    Either  owner  might  sell  or  refuse  selling,  and  his 
right  and  title  could  not  be  abridged  by  any  action  of  his  co- 
tenants.    Whatever  may  have  been  the  wrong  in  the  agreement, 
the  transfer  of  title  was  effected  only  by  these  separate  convey- 
ances.    The  deed  of  the  widow  passed  no  title  away  from  any 
of  her  children.     That  deed  may  stand  or  fall  without  in  the 
least  affecting  any  of  the  other  conveyances.     Suppose,  for  in- 
stance, an  action  was  brought  to  set  aside  the  widow's  deed 
alone,  can  it  be  claimed  for  a  moment  that  the  children  would 
be  necessary  or  proper  parties  to  such  an  action?     Whatever 
the  consideration  received  by  the  widow,  whatever  inducements 
she  received  for  the   execution,  whatever  threats  or  promises 
were  made  to  her,  they  would  have  no  right  to  challenge  the 
deed,  they  would  not  be  interested  in  having  the  deed  set  aside, 
they  would  have  absolutely  no  right  to  take  part  in  the  litiga- 
tion.    This  would  be  a  matter  concerning  herself  alone.    If  she 
had  been  wronged,  she  and  she  alone  could  bring  an  action  to 
right  that  wrong,  and,  beyond  question,  they  would  be  improper 
parties  to  such  an  action.     If  successful  they  would  gain  noth- 
ing; if  unsuccessful  they  would  lose  nothing.     The  same  may 
be  said  in  reference  to  each  of  the  other  deeds.     The  grantors 
therein  would  be  the  only  parties  interested  in  having  those 
deeds  set  aside.     It  is  not  enough  under  the  section  quoted  that 
all  the  plaintiffs  should  have  an  interest  in  the  subject  of  the 
action;  it  is  essential  that  they  should  all  have  an  interest  in 
obtaining  the  relief  demanded.     But  only  the  grantor  in  each 
deed  is  interested  in  obtaining  the  cancellation  of  that  deed. 


Sec.  2.]  Joinder  op  Parties.  "         211 

As  each  grantor  is  alone  interested  in  obtaining  the  cancellation 
of  his  own  deed,  and  as  all  the  other  plaintiffs  would  be  im- 
proper parties  in  an  action  brought  by  the  one  alone  to  set  aside 
his  individual  deed,  so  where  all  the  parties  unite  in  an  action 
to  have  set  aside  six  several  deeds  by  separate  grantors  convey- 
ing separate  interests,  they  unite  six  several  causes  of  action 
in  one  suit,  and  six  several  causes  of  action  in  each  of  which 
only  a  portion  of  the  plaintiffs  in  interested. 

This  does  not  assimilate  an  action  in  which  the  possession  of 
the  land  owned  in  common  is  disturbed,  for  there  each  of  the 
owners  is  alike  interested  in  the  possession.  Jointly  interested 
in  the  possession,  they  may  jointly  sue  for  any  disturbance  of 
their  possession.  But  while  jointly  interested  in  the  possession, 
they  are  not  jointly  interested  in  the  title.  Each  owns  his  title 
separate  and  apart  from  the  others — owns  it  absolutely  and 
alone.  The  fact  that  they  take  by  inheritance  from  a  common 
ancestor,  in  no  manner  unifies  their  title.  They  hold  by  the 
same  complete,  separate,  and  independent  title  as  though  each 
had  purchased  his  interest  from  a  different  party.  Nor  does 
the  case  assimilate  that  in  which  by  a  single  instrument,  as  a 
tax  or  other  deed,  a  cloud  is  cast  upon  the  title  to  the  entire 
tract,  or  one  in  which  owners  of  different  tracts  unite  in  a 
single  action  to  abate  a  common  nuisance.  In  such  cases  there 
may  be  said  to  be  a  unity  of  action,  a  unity  in  the  relief  de- 
manded, either  the  single  cloud  is  to  be  removed  from  the  title, 
or  the  common  nuisance  is  to  be  abated.  But  here  each  party's 
title  is  affected  by  a  separate  deed  executed  at  a  different  time 
and  place,  and  purporting  to  convey  only  his  own  separate  in- 
terest, and  the  sole  relief  he  can  obtain  is  the  cancellation  of 
his  own  deed. 

Again,  it  is  not  true  that  there  was  but  a  single  contract  or 
agreement  in  reference  to  the  transfer  of  this  land.  The  peti- 
tion alleges  that  under  threats,  duress,  etc.,  as  above  stated,  the 
widow  made  her  deed,  and  that  under  like  threats,  duress,  etc., 
and  for  the  sake  of  saving  some  small  pittance  if  they  could, 
for  their  mother,  the  other  adult  plaintiffs  made  their  deeds. 
So  that  there  is,  in  fact,  no  unity  either  in  the  cause  of  action 
or  in  the  relief  demanded.  In  1  Daniell's  Chancery,  395,  the 
author  says:  "Thus,  if  an  estate  is  sold  in  lots  to  different  pur- 
chasers, the  purchasers  cannot  join  in  exhibiting  one  bill  against 
the  vendor  for  a  specific  performance;  for  each  party's  case 


212  Paeties  to  Actions.  [Chap.  II. 

would  be  distinct,  and  there  must  be  a  distinct  bill  on  each  con- 
tract. Hudson  V.  Maddison,  12  Sim.  416;  Coop.  Eq.  PL  182; 
Story  Eq.  PI.  272,  and  notes."  If  separate  vendees  cannot 
unite  in  a  single  bill  against  a  common  vendor,  neither  can  sep- 
arate vendors  unite  in  a  single  bill  against  a  common  vendee. 
See,  further,  the  following  authorities  from  this  court:  Harsh 
V.  Morgan,  1  Kan.  293;  Winfield  Town  Co.  v.  Maris,  11  Kan. 
147;  Hudson  v.  Atchison  Co.,  12  Kan.  147;  Swenson  v.  Plow 
Co.,  14  Kan.  388.  Also  the  cases  of  Port  v.  Yaw,  46  Iowa  323, 
and  Tate  v.  Railroad  Co.,  10  Ind.  174,  in  which  last  case  the 
court  in  the  syllabus  lays  down  the  doctrine  thus:  "Two  or 
more  persons,  having  separate  causes  of  action  against  the  same 
defendant,  though  arising  out  of  the  same  transaction,  cannot 
unite;  nor  can  several  plaintiffs  in  one  complaint  demand  sev- 
eral distmct  matters  of  relief;  nor  can  they  enforce  joint  and 
separate  demands  against  the  same  defendants."^ 

We  conclude,  then,  that  upon  this  ground  the  ruling  of  the 
district  court  is  correct,  and  must  be  affirmed. 


STROBEL  V.  KERR  SALT  COMPANY. 

Court  of  Appeals  of  New  York,  1900.    164  N.  Y.  303. 

This  action  was  commenced  in  1892  by  fourteen  plaintiffs  who 
own  various  mills  on  Oatka  creek,  a  natural  stream  running 
through  the  counties  of  Wyoming,  Genesee  and  Monroe,  against 
the  defendant,  a  domestic  corporation  engaged  in  the  man- 
ufacture of  salt  at  a  point  on  said  creek  above  the  mills  of  the 
plaintiffs,  to  restrain  it  from  diverting  or  polluting  the  waters 
thereof.     The  action  is  for  an  injunction  only,  as  the  plaintiffs 

1  And  so  in  Levering  v.   Schell,  2  Courts     of    equity    in    modern 

78    Mo.    167,    (1883),    denying    the  times    frequently    award    damages 

right  of  separate  creditors  to  join  in    connection   with    an   injunction 

in   an   action   to   set    aside   assign-  restraining    the    continuance    of    a 

ments    of    their    respective    claims  nuisance,  but  not  in  favor  of  sepa- 

to   the   same   defendant.     See   also  rate   property   owners,   Younkin  v. 

Norian   v.   Bennett,    179    Cal.    806,  Milwaukee  Traction  Co.,  112  Wis. 

(1919),    plaintiffs  severally  induced  15,    (1901). 
by   fraud   to   purchase   stock   in   a 
corporation. 


Sec.  2.]  Joinder  of  Parties.  213 

in  their  complaint  expressly  reserve  "to  themselves  and  each 
of  them  their  several  damages^  #  #  #  -y^hjc}^  iy^qj  ^\i  geek 
to  recover  in  several  actions  at  law  in  due  time  to  be  prosecuted 
for  that  purpose."  In  its  answer  the  defendant  denied  that  it 
had  diverted  or  polluted  the  water  of  the  stream,  except  thai  in 
carrying  on  the  business  of  maufacturing  salt  upon  its  own 
premises,  it  had  made  a  reasonable  use  of  a  small  portion  of 
said  water,  and  alleged  that  such  use  was  necessary  and  law- 
ful.   *    *    * 

Upon  the  trial,  which  took  place  about  seven  years  after  the 
defendant  had  established  its  plant,  the  conflict  in  the  testimony 
was  mainly  confined  to  the  degree  of  diminution  and  pollution. 
The  amount  of  diminution  depends  largely  upon  the  alleged 
return  of  the  water  to  the  stream  after  it  had  been  converted 
into  vapor  and  allowed  to  escape  in  the  air.  The  amount  of 
pollution  depends  largely  upon  when  the  samples  of  water, 
which  were  analyzed  by  chemists,  were  taken  from  the  stream, 
as  those  taken  in  high  water  contained  a  small  amount  of  salt 
when  compared  with  those  taken  during  low  water.    *    *    * 

It  was  found  as  a  conclusion  of  law  that  the  plaintiffs  were 
not  entitled  to  any  part  of  the  relief  demanded  in  their  com4 
plaint,  which  was  dismissed  upon  the  merits,  with  costs.  Upon 
appeal  to  the  Appellate  Division  the  judgment  entered  accord- 
ingly was  affirmed  without  an  opinion,  except  that  one  of  the 
justices,  who  dissented,  wrote  elaborately  in  favor  of  reversal. 
Seven  only  of  the  plaintiffs  have  appealed  to  this  court.^ 

Vann,  J.  *  *  *  The  question  of  reasonable  use  is  gen- 
erally a  question  of  fact,  but  whether  the  undisputed  facts,  and 
the  necessary  inferences  therefrom,  establish  an  unreasonable 
use  is  a  question  of  law.  When  the  diversion,  or  pollution, 
which  is  treated  as  a  form  of  diversion,  is  caused  by  a  new  and 
extraordinary  method  of  using  the  water,  hitherto  unknown  in 
the  state,  and  such  method  not  only  permanently  diverts  a 
larger  quantity  of  water  from  the  stream,  but  also  renders  the 
rest  so  salt,  at  times,  that  cattle  will  not  drink  it  unless  forced 
to  by  necessity,  fish  are  destroyed  in  great  numbers,  vegetation 
is  killed  and  machinery  rusted,  such  use  as  a  matter  of  law  is 
unreasonable  and  entitles  the  lower  riparian  owner  to  relief. 
"Where  the  natural  and  necessary  result  of  the  place  selected, 

8  statement  condensed  and  parts  of  the  opinion  omitted. 


214  Parties  to  Actions.  [Chap.  II. 

and  the  method  adopted  by  an  upper  riparian  owner  in  the 
conduct  of  his  business  is  to  cause  material  injury  to  the  prop- 
erty of  an  owner  below,  a  court  of  equity  will  exercise  its  power 
to  restrain  on  account  of  the  inadequacy  of  the  remedy  at  law 
and  in  order  to  prevent  a  multiplicity  of  suits.  The  lower  ripa- 
rian owners  are  entitled  to  a  fair  participation  in  the  use  of 
the  water  and  their  rights  cannot  be  cut  down  by  the  conven- 
ience or  necessity  of  the  defendant's  business.  "The  necessities 
of  one  man's  business  cannot  be  the  standard  of  another's  rights 
in  a  thing  which  belongs  to  both."  (Wheatley  v.  Chrisman, 
24  Pa.  St.  298.)  *    *    * 

The  objection  that  the  plaintiffs  have  no  cause  of  action  com- 
mon to  all,  and  hence  that  they  cannot  sue  jointly,  is  unsound. 
While  each  owns  a  distinct  piece  of  land  situated  upon  a  part 
of  the  stream  separate  from  that  abutted  upon  by  the  land  of 
every  other  owner,  they  all  have  a  common  grievance  against 
the  defendant  for  an  injury  of  the  same  kind,  inflicted  at  the 
same  time  and  by  the  same  acts.  The  common  injury,  although 
differing  in  degree  as  to  each  owner,  makes  a  common  interest 
and  warrants  a  common  remedy.  (Emery  v.  Erskine,  66  Barb. 
9,  14;  Reid  v.  Gifford,  Hopkins'  Ch.  416,  477;  Murray  v.  Hay, 
IBarb.  Ch.  59,  62;  Blunt  v.  Hay,  4  Sand.  Ch.  362.)* 

It  does  not  follow  from  these  views  that,  if  upon  another  trial 
the  facts  are  unchanged,  the  defendant  and  the  other  salt  man- 
ufacturers will  be  compelled  to  make  such  terms  as  they  can,  for 
a  court  of  equity,  with  its  plastic  powers,  can  require,  as  a  con- 

4  And  so  in  Tounkin  v.  Mihvau-  owner   may  be   entitled  to   equita- 

kee    Traction    Co.,     112    Wis.     15,  Lie  relief  because  of  the  adequacy 

(1901),    (action  by  separate   abut-  of  his  legal  remedy,  either  by  way 

ting  owners  to  restrain  unreasona-  of    action    or    by    way    of    defense 

ble  use  of  a  street).  to  the  enforcement  of  the  tax;  in 

For  the  joinder  of  separate  prop-  such  cases  the  real  question  is  one 
erly  owners  in  an  action  to  re-  of  equity  jurisdiction,  i.  e.  whether 
strain  the  collecting  of  an  illegal  the  number  of  similar  claims  or 
tax  or  assessment,  see  Michael  v.  defenses  will  justify  resort  to 
St.  Louis,  112  Mo.  610,  (1892).  equitable  remedies  which  would 
In  the  tax  cases  there  may  be  two  otherwise  be  denied.  Tor  an  ex- 
very  different  questions  which  are  haustive  discussion  of  the  problem 
sometimes  confused.  Each  prop-  of  equity  jurisdiction  to  prevent  a 
erty  owner  may  be  entitled  to  multiplicity  of  suits  at  law,  see 
equitable  relief,  so  that  the  only  Soutliern  Steel  Co.  v.  Hopkins, 
question  is  one  of  joinder  for  con-  40  L.  E.  A.  (N.  S.)  464,  (1911), 
veuience;    or,    no    single    property  annotated. 


Sec.  2.]  Joinder  of  Parties.  215 

dition  of  withholding  a  permanent  injunction,  the  construction 
of  a  reservoir  on  the  upper  sources  of  the  stream,  to  accumulate 
water  when  it  is  plentiful  for  use  in  times  of  scarcity,  and  thus 
neutralize  the  diminution  caused  by  the  manufacture  of  salt. 
That  court  may  also  require,  on  the  like  condition,  greater  care 
in  preventing  the  escape  of  salt  water  and  salt  substances  into 
the  stream,  as  the  defendant  attempted  to  do  during  the  trial, 
and  thus  prevent  or  minimize  the  pollution. 

The  judgment  of  the  courts  below  should  be  reversed  and  a 
'new  trial  granted,  with  costs  to  abide  the  event. 

Judgment  reversed. 


II.    Defendants} 
VOORHIS  V.  CHILDS'  EX'R. 

Court  of  Appeals  of  Neiv  York,  1858.    17  N.  Y.  354. 

Appeal  from  the  Supreme  Court.  The  plaintiffs  brought  their 
action  against  the  surviving  memliers  of  the  firm  of  Baxter, 
Brady,  Lent  &  Co.,  and  against  the  respondent  as  surviving 
executor  of  Heman  W.  Childs,  a  deceased  member  of  said  firm*. 
The  complaint  alleged  the  making  of  a  promissory  note  by  the 
partnership  in  the  lifetime  of  Heman  W.  Childs;  its  maturing 
and  non-payment ;  the  subsequent  death  of  Childs ;  the  granting 
of  letters  testamentary  to  the  respondent  as  his  executor,  etc. 
It  did  not  aver  any  previous  suit  against  the  surviving  partners, 
or  their  insolvency.  The  respondent.  Child's  executor,  demurred 
on  the  ground  that  the  complaint  did  not  state  a  cause  of  action 
against  him.  He  had  judgment  for  the  dismissal  of  the  com- 
plaint as  against  him,  which  having  on  appeal  been  affirmed,  bv 
the  supreme  court  at  general  term  in  the  seventh  district,  the" 
plaintiffs  appealed  to  this  court. 

Selden,  J.2  Prior  to  the  enactment  of  the  code  of  procedure 
There  was  a  conflict  of  opinion  between  the  courts  of  this  state 
and  those  of  England,  as  to  the  remedy  allowed  to  the  creditors 
of  a  partnership  against  the  representatives  of  a  deceased  part- 

1  See  statute,  ante  p.  167.  2  Parts  of  ojiinion  omitted. 


216  Parties  to  Actions.  [Chap.  II. 

ner.  It  was  conceded  by  both  that  only  the  surviving  partners 
could  be  sued  at  law,  but  it  was  held  by  the  English  courts  that 
the  representatives  of  the  deceased  partner  might  be  immediate- 
ly proceeded  against  in  equity  and  compelled  to  pay  the  entire 
debts  of  the  firm,  without  any  previous  resort  to  the  surviving 
members  or  any  evidence  that  such  debts  could  not  be  collected 
from  them ;  while  on  the  other  hand  our  courts  held  either  that 
the  remedy  against  the  survivors  must  first  be  exhausted  or  it 
must  appear  that  they  were  insolvent  and  unable  to  pay.    *    *    * 

Besides,  these  English  decisions  permitting  the  creditor  to 
proceed  in  the  first  instance  in  equity  against  the  estate  of  the 
deceased  partner,  are  in  conflict  with  the  established  doctrine 
that  parties  must  first  exhaust  their  legal  remedies  before  re- 
sorting to  courts  of  equity. 

But  whether  these  considerations  are  sufficient  to  justify  the 
positions  assumed  by  our  courts  or  not,  it  may  be  regarded  as 
having  been  settled  in  this  state,  prior  to  the  code,  that  the 
creditors  in  such  a  case,  could  not  come  into  a  court  of  equity 
without  showing,  either  that  the  surviving  partners  had  been 
proceeded  against  to  execution  at  law,  or  that  they  were  insolv- 
ent. (Grant  v.  Shurter,  1  Wend.  148;  Hamersley  v.  Lambert, 
2  John.  Ch.  608 ;  Leake  &  Watts  Orphan  House  v.  Lawrence,  11 
Paige  80;  2  Denio  577;  S.  C.)  In  the  last  of  these  cases,  the 
English  cases  referred  to  were  cited  and  distinctly  overruled. 
There  are  many  American  cases,  both  in  the  State  and  the 
United  States'  courts  supporting  and  confirming  the  doctrine 
of  the  courts  of  this  state  upon  the  subject.  (Pendleton  v. 
Phelps,  4  Day,  481 ;  Remsdy  v.  Kane,  1  Gallis.  385 ;  Sturges  v. 
Beach,  1  Conn.  509;  Alsop  v.  Mather,  8  Conn.  584;  Caldwell 
V.  Stileman,  1  Rawle,  212;  Rubbell  v.  Perrin,  3  Ham.  Ohio  287.) 

The  complaint  in  this  case  is  in  the  form  of  an  ordinary  action 
at  law  upon  a  promissory  note  against  all  of  the  surviving  part- 
ners, together  with  the  executors  of  the  deceased  partner;  and 
contains  no  averment  that  any  proceedings  have  ever  been  had 
against  any  or  either  of  the  surviving  partners,  or  that  they  are 
without  the  means  of  payment.  From  what  has  been  already 
said,  it  is  plain  that  formerly  no  such  action  could  have  been 
maintained.  The  question  presented  is,  how  far  the  code  has 
changed  the  law  in  this  respect.  It  cannot  be  claimed  that  it  has 
altered  the  principles  which  govern  the  responsibilities  of  the 
representatives  of  a  deceased  partner  for  the  partnership  debts, 


Sec.  2.]  Joinder  op  Parties.  217 

or  the  order  of  liability  as  between  them  and  the  surviving  part- 
ners. It  contains  not  a  word  indicative  of  such  intent.  The 
latter,  therefore,  are  still  primarily  liable  for  the  debts ;  and  the 
estate  of  the  deceased  partner  can  only  be  resorted  to  in  case  of 
the  inability  of  the  survivors  to  meet  them.  Hence  it  is  plain 
that  this  action  cannot  be  sustained  as  a  suit  in  equity,  founded 
upon  the  ultimate  liability  of  the  representatives  of  Childs;  be- 
cause it  has  been  shown,  that  in  such  an  action  it  is  indispensable 
to  aver,  either  that  the  survivors  have  been  prosecuted  to  execu- 
tion at  law,  or  that  they  are  without  the  means  of  payment. 

What  I  undei-stand  the  plaintiff's  counsel  to  claim  is,  that 
considering  the  suit  as  founded  upon  the  legal  liability  of  the 
surviving  partners,  the  plaintiffs  were  w^arranted  in  making  the 
executors  parties,  by  section  118  of  the  code,  which  provides 
that,  ''any  person  may  be  made  a  defendant  who  has  or  claims 
an  interest  in  the  controversy  adverse  to  the  plaintiff;  or  who  is 
a  necessary  party  to  a  complete  determination  or  settlement  of 
the  questions  involved  therein."  This  section  is  in  terms,  a 
mere  statutory  enactment  of  the  rule  as  to  parties  which  has 
always  prevailed  in  courts  of  ecjuity;  but  as  it  is  not  expressly 
limited  to  cases  of  that  character,  it  has  been  contended,  not  only 
in  this  case  but  in  others,  that  it  is  applicable  to  all  legal  as  well 
as  equitable  actions. 

The  difference  in  the  rule  as  to  parties  between  courts  of  law 
and  of  equity  was  not  accidental,  but  had  an  obvious  foundation 
in  reason.  Where  all  persons  having  an  interest  in  the  con- 
troversy are  made  parties,  cases  are  frequently  rendered  exceed- 
ingly complex.  Judges  can  command  the  time  and  patience,  and 
may  be  safely  endowed  with  the  discretion  required  to  disen- 
tangle their  intricacies  and  dispose  of  their  varied  equities.  But 
it  is  extremely  inconvenient,  if  not  impossible,  to  try  such  cases 
by  a  jury.  They  are  qualified  to  deal  with  simple  issues  only ; 
and  the  rules  of  the  common  law  as  to  parties,  as  well  as  those 
which  prevailed  in  the  formation  of  issues,  were  adapted  to  the 
nature  of  the  tribunal  before  which  the  cases  were  to  be  tried. 
The  attempt  to  apply  the  equitable  rule  as  to  parties,  to  all  legal 
actions,  would  lead  to  infinite  embarrassment  in  the  trial  of  jury 
cases.  If,  however,  the  legislature  had  power  to  prescribe  such 
a  change,  and  has  done  so,  the  courts  have  no  discretion  in  the 
matter,  but  are  bound  to  execute  the  legislative  will. 

It  is  supposed  by  some  that  it  was  intended  to  abolish  by  the 


15 


218  Parties  to  Actions.  [Chap.  II. 

code  all  distinction,  not  only  in  forms  but  substance,  between 
legal  and  equitable  actions;  and  it  must  be  conceded  that  many 
of  its  provisions  taken  by  themselves  might  seem  to  indicate  such 
an  intent;  and  yet  nothing  can  be  clearer  than  that  the  legis- 
lature has  wholly  failed  to  carry  into  effect  such  an  intention  if 
it  existed.  On  the  contrary,  the  code  expressly  retains  the  prin- 
cipal differences  which  distinguished  the  two  classes  of  actions. 
Actions  at  law  were  to  be  tried  by  a  jury;  suits  in  equity  by  the 
court.  This  distinction  remains  undisturbed.  In  legal  actions, 
with  few  exceptions,  compensation  in  damages  was  the  only 
mode  of  redress;  while  in  such  as  were  equitable  the  relief  was 
such  as  was  adapted  to  the  exigencies  of  the  case.  The  code 
makes  no  change  in  this  respect.  In  one  of  these  classes  of  ac- 
tion costs  were  recoverable  by  the  successful  party  as  a  matter 
of  course ;  in  the  other,  they  rested  in  the  discretion  of  the  court. 
This  remains  as  before. 

Now  it  is  plain,  that  if  we  should  make  the  code  a  consistent 
system,  one  that  can  be  practically  administered,  we  must  con- 
strue it,  not  in  view  of  the  general  proposition,  obviously  untrue, 
that  the  distinctions  between  actions  at  law  and  suits  in  equity 
are  abolished,  but  in  the  light  afforded  by  a  comparison  of  its 
various  provisions.  Take,  then,  the  case  in  hand.  Is  it  reason- 
able, in  view  of  the  important  distinctions  thus  made,  by  the 
code  itself  between  legal  and  equitable  actions,  to  hold  that  it 
was  intended  that  section  118  should  apply  to  both  these  classes  ? 
Let  us  look  at  some  of  the  difficulties  to  which  this  would  lead. 
The  mode  of  trial  depends  upon  the  nature  of  the  action.  Those 
which  merely  seek  to  recover  a  sum  of  money  are  to  be  tried  by 
a  jury.  The  legislature  was  forced  to  adopt  this  provision  by 
the  constitution,  which  preserves  trial  by  jury  in  all  cases  where 
it  had  theretofore  existed. 

If,  however,  the  action  involves  anything  whatever  besides  the 
recovery  of  money,  unless  it  be  for  the  recovery  of  specific,  real 
or  personal  property,  or  to  obtain  a  divorce,  if  it  seeks  the  least 
modification  of  the  judgment  in  respect  to  any  of  the  parties,  it 
then  becomes  triable  by  the  court.  The  language  of  the  code 
is,  that  ' '  an  issue  of  fact  in  an  action  for  the  recovery  of  money 
only  *  *  *  must  be  tried  by  a  jury."  It  is  easy  to  see, 
therefore,  that  if  section  118  is  to  receive  the  construction  con- 
tended for,  most  actions  for  the  recovery  of  money,  as  well  as 
actions  for  the  recovey  of  specific  real  or  personal  property  by 


Sec.  2.]  Joinder  of  Parties.  219 

bringing  in  parties  having  some  equitable  interest  real  or  sup- 
posed, in  the  controversy,  may  be  readily  converted  into  actions 
to  be  tried  by  the  court  instead  of  a  jury.  Has  the  legislature 
power  thus  to  subvert,  or  enable  parties  to  evade,  an  imporant 
constitutional  provision?  If  there  is  any  one  clause  of  the  con- 
stitution which  the  courts  are  under  greater  obligation  to  pro- 
tect from  all  encroachment  than  others,  it  is  that  which  pre- 
serves trial  by  jury;  and  it  is  clearly  impossible  for  them,  in 
view  of  their  duty  in  this  respect,  so  to  construe  the  provisions 
of  the  code  as  to  render  all  actions,  legal  as  well  as  equitable, 
triable  by  the  courts  at  the  option  of  the  plaintiff. 

But  there  are  other  embarrassments  in  the  way  of  the  con- 
struction of  section  118,  for  which  the  plaintiff  contends,  growing 
out  of  the  provisions  of  the  code  in  respect  to  costs.  It  will  be 
found  difficult  if  not  impossible  to  reconcile  that  construction 
with  those  sections  which  give  costs  of  course  to  the  successful 
party  in  all  actions  for  the  recovery  of  money  or  of  specific  real 
or  personal  property.  In  actions  of  ejectment  especially,  where 
so  many  collateral  and  subordinate  equities  frequently  exist,  the 
task  of  harmonizing  the  equity  rule  as  to  parties  with  the  com- 
mon law  rules  as  to  costs  and  as  to  the  mode  of  trial,  would  be 
attended  with  serious  embarrassment. 

Taking  the  code  then,  as  a  whole,  and  comparing  its  various 
provisions  with  each  other,  it  seems  evident  that  the  legislature 
never  intended  section  118,  to  receive  a  construction  which 
would  authorize  a  suit  like  the  present.  Altliough  all  the  diffi- 
culties which  have  been  suggested,  might  not  arise  in  this  case, 
yet  the  section  in  question  can  only  receive  one  of  two  inter- 
pretations. It  must  either  be  confined  strictly  to  actions  of  an 
equitable'  nature,  to  which  alone  it  seems  appropriate,  or  it  must 
extend  to  actions  of  every  kind,  whether  legal  or  equitable ;  and 
I  have  no  hesitation  in  holding,  for  the  reasons  suggested,  that 
it  should  be  regarded  as  a  mere  statutory  adoption  of  the  equi- 
table rule  on  the  subject  of  parties,  and  was  intended  to  have 
substantially  the  same  application.    The  language  of  the  section 

8  See    Chapman    v.    Forbes,    123  tiff  may  sue  whom  he  pleases;  if 

N.  Y.  532,   (1890),  that  the  provi-  he   omits   to   bring  in   a   necessary 

sion  authorizing  the  court  to  order  party,    his    action    may    fail,    but 

additional    parties    to    be    brought  he    cannot    be    forced    to    litigate 

in,  is  not  applicable  to  actions  at  with   a   person   against   his   will. 
law,  since  in  such  cases  the  plain- 


220  Parties  to  Actions.  [Chap.  IT. 

itself  points  to  this  interpretation.  It  authorizes  the  bringing 
of  all  those  who  are  necessary  parties  "to  a  complete  determina- 
tion or  settlement  of  the  questions  involved. ' '  This  language  is 
inappropriate  to  actions  for  the  recovery  of  money  only,  or  of 
specific  real  or  personal  property ;  but  em1)races  the  very  gist  of 
the  rule  which  has  always  prevailed  in  equitable  actions. 

It  is  worthy  of  remark  that  the  construction  here  contended 
for,  is  that  which  has  been  of  necessity  to  a  very  great  extent 
practically  put  upon  the  various  provisions  of  the  code.  Cases 
are  found  so  naturally  to  arrange  themselves  according  to  the 
classification  which  existed  prior  to  the  code,  that  the  distinction 
between  legal  and  equitable  actions,  is  nearly  as  marked  upon 
all  the  papers  presented  to  the  courts  as  formerly.  The  same 
names  are  not  used,  but  the  nature  of  the  cases  has  not  changed, 
nor  have  the  distinctions  been  abrogated.  Very  few  attempts 
have  been  made  to  carry  into  practical  effect  the  idea  of  blend- 
ing legal  and  equitable  causes  of  action  in  one  common  proceed- 
ing. Were  it  necessary  to  the  decision  of  this  case,  I  should  be 
prepared  to  hold,  that  that  clause  of  the  constitution  which 
provides,  that  ''there  shall  be  a  supreme  court  having  general 
jurisdiction  in  law  and  equity,"  presents  an  insuperable  barrier 
to  any  legislative  merger  of  the  two  jurisdictions.  While  the 
legislature  may,  as  it  has  done,  abolish  the  distinctions  which 
existed  in  mere  matters  of  form,  yet  it  is  easy  to  show  that  to 
blend  the  two  in  respect  to  matters  of  substance  and  principle, 
would  be  virtually  to  subvert  the  jurisdiction  of  the  court  in  re- 
gard to  the  one  or  the  other;  which  the  legislature  clearly  has 
not  the  power  to  do.  But  I  will  not  pursue  this  topic  further, 
as  the  conclusion  to  which  I  have  arrived  seems  to  me  fully  war- 
ranted by  the  previous  reasoning. 

As  therefore  the  present  action  must  be  regarded  as  one  of 
a  purely  legal  nature,  brought  against  the  surviving  partners, 
upon  their  legal  liability,  it  follows,  that  the  executors  of  the 
deceased  partner,  who  is  liable  only  in  equity,*  were  improperly 

4  In    a    number     of    the     states  173   N.   Y.   335,    (1902);   Mo.  R.  S. 

there     are     statutes     making     the  1919,   §§    1160,  2156. 
legal    liability     survive,     and     ex-  Where    a    several   liability    only 

pressly  or  impliedly  authorizing  a  survives,  the   general  provision  as 

joint    action    against   the    survivor  to  the  joinder  of  defendants  does 

and  personal  representative  of  the  not  appear  to  authorize    the  joinder 

deceased  obligor,  Potta  v.  Daunce,  of  the  survivor  with  the  represen- 


Sec.  2.]  Joinder  op  Parties.  221 

made  parties.  Had  the  defendants  united  in  a  demurrer  upon 
the  ground  that  several  causes  of  action  were  improperly  joined, 
thc-y  might  all  perhaps  have  been  entitled  to  judgment.  But 
the  demurrer  is  actually  put  in  by  the  executors  alone,  and  rests 
upon  the  narrower  ground  that  the  complaint  does  not  state 
facts  enough  to  constitute  a  cause  of  action  against  tJicm.^ 

If  we  are  right  in  our  reasoning,  the  coraphiint  is  clearly  de- 
fective in  this  respect,  and  the  judgment  of  the  supreme  court 
should  therefore  be  affirmed. 

Pratt  and  Strong,  Js.,  concurred  in  this  opinion,  and  Denio, 
J.,  in  the  construction  therein  put  on  §  118  of  the  code.  All 
the  other  judges  concurred  in  the  result  upon  the  ground  that 
the  complaint  made  no  cause  of  action  against  the  respondent, 
reserving  the  question  whether  the  insolvency  of  the  surviving 
partners,  or  of  the  partnership  estate,  would  justify  a  joint 
action  against  the  survivors  and  representatives  of  the  deceased 
partner. 

Judgment  affirmed. 


SLUTTS  V.  CHAFEE. 
Supreme  Court  of  Wisconsin,  18S0.    48  Wis.  617. 

Cole,  J.  This  action  was  commenced  before  a  justice  of  the 
peace.  The  complaint  was  oral,  and  as  entered  in  the  docket 
of  the  justice  was  as  follows:  "Plaintiff  complains  that  defend- 
ant is  indebted  to  him  in  manner  following :  for  a  stove  lent  to 
defendants  some  time  in  1870  or  1871,  which  stove  was  of  the 
value  of  about  $45,  and  which  defendants  have  never  returned 
to  plaintiff,  and  refused  to  return  it  when  demanded;  and  de- 
mands judgment,  with  costs." 

The  answer  of  the  defendants  was  a  general  denial,  and  that 
one  S.  J.  Plummer  was  a  copartner  with  the  defendants,  and 

tative  of  the  deceased,  Union  Bk.  breach  of  a  covenant  of  warranty 

V.  Mott,  23  N.  Y.  633,  (1863);  but  by   the    deceased    ancestor,    Topico 

see    Lawrence    v.    Doolan,    68    Cal.  Land    Co.    v.    Lanibonru,    170    Cal. 

309,    (1885).      A    joint    action   can-  33,    (1915). 

not     be     maintained     against     the  6  See  Contra  Fisher  v.  Chadwick, 

administrator  and  the  heir  for  the  4  Wyo.   379,   (1893). 


222  Parties  to  Actions.  [Chap.  II. 

should  be  joined^  as  a  defendant  in  the  action;  also  the  statute 
of  limitations.  Judgment  was  rendered  by  the  justice  in  favor 
of  the  plaintiff,  and  the  defendants  appealed  the  cause.  At  the 
close  of  the  testimony  in  the  circuit  court,  the  defendants  moved 
for  a  nonsuit,  which  was  denied  and  an  exception  taken.  The 
learned  circuit  court,  among  other  things,  charged  that  the  ac- 
tion was  what  in  law  was  termed  an  action  of  trover,  juid  this 
charge  was  accepted  to.  There  was  a  verdict  for  the  plaintiff. 
The  real  question  arising  on  the  record  is,  whether  the  court 
below  was  right  in  treating  this  as  an  action  of  tort,  thereby 
rendering  the  joinder  of  Plummer  unnecessary.'  Upon  looking 
at  the  complaint,  as  we  must  do  to  determine  this  question,  it 
seems  to  us  it  states  a  cause  of  action  ex  contractu. 

The  plaintiff  alleges,  or  states,  that  the  defendants  are  in- 
debted to  him  for  the  value  of  the  stove  which  he  lent  them,  and 
which  they  have  never  returned.  The  word  "indebted"  is  sig- 
nificant, for  it  is  a  legal  term,  having  a  legal  meaning,  and  im- 
plies a  debt  presently  payable.  It  is  so  defined  by  this  court 
in  Trowbridge  v.  Sickler,  42  Wis.  417.  It  seems  to  us  that  it 
is  a  forced  and  unnatural  construction  of  the  language  of  the 
complaint  to  assume  or  hold  that  it  is  for  a  wrongful  conversion 
of  the  stove.  Possibly  the  evidence  introduced  on  the  trial 
would  sustain  such  an  action,  but  that  does  not  appear  to  be  the 
gist  or  gravamen  of  the  complaint ;  for,  as  we  have  said,  the  em- 
phatic word  used  implies  an  obligation  or  duty  sprinj-ing  from 
or  arising  upon  contract.  Great  liberality  in  pleading  is  al- 
lowed in  the  justice's  court;  but  surely  a  party  ought  to  make 
it  clearly  manifest  that  he  sues  for  a  tort,  when  that  is  the  cause 
of  action.  Suppose  the  defendants  were  arrested  on  a  ca.  sa. 
issued  on  the  judgment,  and  imprisoned ;  would  any  court  hes- 
itate to  declare  such  imprisonment  unlawful,  upon  an  examina- 
tion of  the  complaint  ?  It  seems  to  us  not.  Now,  if  we  are  right 
in  supposing  the  action  was  ex  contractu,  then  it  is  apparent 

6  Where    the    defect    appears    on  Evans    Brick    Co.    v.    Hatfield,    93 

the  face  of  the    complaint,  it  should  Wis.  665.     Where  two  or  more  are 

be  reached  by  demurrer,  and  when  sued    as    joint    promissors,    and    a 

not    apparent,    by    answer    in    the  several    promise     only    is    proved, 

nature  of  a  plea  in  abatement,  as  the     variance     is     fatnl.      ^itz     v. 

in   the   principal   case;   in   the   ab-  Clark,    7    Minn.    217,    (1862). 
sence    of   demurrer    or   answer   the  7  For    the    rule    in    the    case    of 

objection   will   be   wnived.     Horst-  tort-feasors,    see    note    to    Nichols 

kotte     V.     Menier,     50     Mo.     158;  v.   Michael,  post  p.   228. 


Sec.  2  j  Joinder  op  Parties.  223 

that  Pliimraer  should  have  been  made  a  party  defendant  ■,^  and, 
because  he  was  not  brought  in,  we  think  there  should  be  a  new 
trial.  It  is  true,  the  amount  involved  is  inconsiderable;  but 
we  cannot  affirm  the  judgment  without  a  violation  of  legal 
principles.  / 

By  the  Court. — The  judgment  of  the  circuit  court  is  reversed, 
and  the  cause  is  remanded  for  further  proceedings  in  accordance 
with  this  opinion. 


CARMAN  V.  PLASS. 

Court  of  Appeals  of  New  York,  1861.     23  N.  Y.  286. 

Appeal  from  the  Supreme  Court.  The  action  was  commenced 
in  the  City  Court  of  Brooklyn,  where  the  plaintiff  complained 
against  the  defendant,  Plass,  as  the  lessee  for  years  of  certain 
premises,  claiming  to  recover  $116.66,  being  arrears  of  rent  due 
and  payable  March  1,  1859.  The  lease  was  averred  to  be  by 
indenture  between  the  plaintiff,  of  the  first  part,  the  defendant 
Plass,  of  the  second  part,  and  the  defendant  Mix,  of  the  third 
part,  executed  under  the  respective  hands  and  seals  of  the  par- 
ties, whereby  Plass  covenanted  to  pay  the  rent  required;  and 
it  was  alleged  that  the  defendant  Mix,  by  the  same  indenture, 
did,  "in  consideration  of  the  premises,  and  of  the  sum  of  one 
dollar,  guarantee  unto  the  plaintiff  the  payment  of  the  afore- 
said rent  and  the  faithful  performance  of  the  covenants  in  the 
said  lease  contained."  The  complaint  further  set  forth  that 
Plass  had  made  default  in  the  payment  of  rent,  and  that  the 
plaintiff  had  notified  Mix,  thereof,  and  that  both  defendants 
had  failed  to  comply,  etc.  There  was  a  general  demand  of 
judgment  against  both  defendants. 

The  defendants  demurred,  on  the  ground  that  no  cause  of 
action  against  the  defendants  jointly  was  set  forth  in  the  com- 
plaint. 

The  city  court  gave  judgment  in  favor  of  the  defendants; 

8  When  the  court  cannot  ob-  properly  proceed  against  the 
tain  jurisdiction  of  one  of  the  others,  Camp.  v.  Grass,  250  U.  S. 
joint    promissors,    the    action    may       308,     (1918), 


224  iP ARTIES  TO  Actions.  [Chap.  II. 

but  it  was  reversed  on  appeal  at  the  general  term  of  the  supreme 
court,  and  judgment  was  rendered  in  favor  of  the  plaintiff. 
The  defendants  appealed  to  this  court. 

Denio,  J.  This  case  comes  precisely  within  the  language  of 
section  120  of  the  Code  of  Procedure,  which  provides  that,  ' '  per- 
sons severally  liable  upon  the  same  obligation  or  instrument, 
including  the  parties  to  bills  of  exchange  and  promissory  notes, 
may  all,  or  any  of  them,  be  included  in  the  same  action,  at  the 
option  of  the  plaintiff. ' '  I  see  no  reason  to  doubt  that  it  is  like- 
wise within  the  meaning  and  intention  of  the  enactment.  It  re- 
lates expressly  to  several  and  not  to  joint  liabilities.  The  latter 
did  not  require  the  aid  of  a  special  provision ;  for  a  plurality  of 
joint  contractors  always  could  be  and  generally  were  required 
to  be,  sued  together;  and  provision  was  made  in  the  act  con- 
cerning joint  debtors,  for  omitting  to  serve  process  on  all,  if  the 
creditor  should  so  elect.  But,  though  this  were  otherwise,  the 
provision  in  question,  relates,  in  terms,  to  cases  where  a  plural- 
ity of  persons  contract  several  obligations  in  the  same  instru- 
ment. That  was  the  case  here.  It  may  be  said  that  the  cause 
of  action  is  not,  in  this  case,  precisely  the  same  against  both  the 
defendants.  The  lessee  engaged  to  pay  the  rent  unconditionally, 
and  the  surety  was  under  no  obligation  until  the  principal  had 
made  default.  But,  after  such  default,  each  of  them  was  liable 
for  the  same  precise  amount  absolutely.  They  were,  therefore, 
within  the  language  which  speaks  of  persons  severally  liable 
upon  the  same  instrument.  If  this  were  otherwise  doubtful,  the 
reference  to  suits  upon  bills  of  exchange  and  promissory  notes 
makes  it  entirely  certain  that  the  present  case  was  one  of  those 
in  the  contemplation  of  the  authors  of  the  section.  The  parties 
to  such  paper  are  included  in  the  provision.  The  indorsee  of  a 
bill  or  note,  and  the  drawer  of  an  accepted  bill,  are  only  liable 
contingently,  and  after  being  charged  upon  a  default  of  the 
maker  or  acceptor.  They  were  included  in  the  scope  of  the  en- 
actment, because,  though,  in  a  general  sense,  parties  to  the  paper 
on  which  their  names  are  placed,  they  are  not  parties  to  the  obli- 
gation, or  instrument,  in  the  same  strict  sense  as  the  surety  in 
the  case  under  consideration.  No  doubt,  a  pretty  radical  innova- 
tion upon  the  common  law  system  of  pleading  was  made  when, 
by  the  act  of  1832  (p.  489,  §  1),  the  several  obligations  of  par- 
ties to  a  bill  or  a  note  were  allowed  to  be  enforced  in  a  single 
action.     But  this  had  become  familiar  law  when  the  code  was 


Sec.  2.]  Joinder  of  Parties.  225 

written,  and  it  seems  then  to  have  been  considered  that  the  prin- 
ciple might  be  usefully  extended  to  cases  like  the  present;  and 
the  section  referred  to  appears  to  me  to  have  been  framed  for 
that  purpose.  I  am  not  able  to  entertain  any  doubt  respecting 
the  correctness  of  the  judgment  of  the  supreme  court.  In  the 
cases  from  11  Howard's  Practice  Reports,  218,  and  from  10 
Barb.  638,  to  which  we  have  been  referred,  the  separate  under- 
taking of  the  surety  was  contained  in  a  different  instrument, 
and  it  was  held  that  he  could  not  be  joined  as  a  defendant  in 
an  action  against  the  principal.  It  was  assumed  by  the  court 
that,  in  a  case  like  the  present,  where  both  parties  were  bound 
by  the  same  instrument,  the  statute  would  apply. 

I  am  in  favor  of  affirming  the  judgment  of  the  supreme  court. 

Comstock,   Ch.   J.,   and  Mason,   J.,   dissented;   all  the   other 
judges  concurring. 

Judgment  affirmed. 


MOWERY  v.  MAST. 

Supreme  Court  of  Nebraska,  1880.     9  Neh.  447. 

Maxwell,  C.  J.  On  the  fifteenth  day  of  April,  1876,  Alfred 
Calvert  executed  a  note  for  the  sum  of  $35  and  interest  to  P.  P. 
Mast  &  Co.,  due  and  payable  at  the  Adams  County  Bank  on  the 
first  day  of  November,  1877.  Before  the  delivery  of  the  note  to 
P.  P.  Mast  &  Co.,  the  following  guaranty  was  written  on  the 
back  of  the  note  by  Mowery,  their  agent :  ' '  For  value  received 
•we  hereby  guarantee  the  payment  of  the  within  note,  and  waive 
protest,  demand  and  notice  of  non-payment  thereof.  G.  W. 
Mowery." 

On  the  seventh  day  of  January,  1879,  an  action  was  com- 
menced against  Calvert  and  Mowery  before  a  justice  of  the 
peace,  upon  the  note  in  question,  and  judgment  rendered  against 
them  jointly  for  the  sum  of  $44.62  and  costs.  Mowery  appealed 
to  the  district  court.  A  petition  being  filed  in  the  district  court 
praying  for  a  joint  judgment  against  Calvert  and  Mowery  a 
demurrer  was  interposed  by  Mowery  on  the  ground  of  a  mis- 
joinder of  causes  of  action.     The  demurrer  was  overruled,  and 


226  Parties  to  Actions.  [Chap.  II. 

judgment  rendered  against  him  jointly  with  Calvert.    He  brings 
the  cause  into  this  court  by  petition  in  error. 

The  only  question  at  issue  is  the  right  of  the  holder  of  a  note 
to  bring  a  joint  action  against  the  maker  and  guarantor  of  a 
note.  Section  44  of  the  Code  of  Civil  Procedure  provides  that 
"persons  severally  liable  upon  the  same  obligation  or  instru- 
ment, including  the  parties  to  bills  of  exchange  and  promissory 
notes,  may  all  or  any  of  them  be  included  in  the  same  action  at 
the  option  of  the  plaintiff."  This  is  a  literal  copy  of  section  120 
of  the  Code  of  New  York,  as  it  existed  prior  to  1876,  and  has 
been  copied  in  Ohio,  Florida,  Minnesota,  Oregon,  Colorado, 
North  Carolina,  South  Carolina  and  Wisconsin.  Bliss  on  Code 
Pleadings,  section  94.  In  Kansas  the  words  "and  indorsers 
and  guarantors"  follow  the  words  "promissory  notes."  Sec- 
tion 2550  of  the  Code  of  Iowa  of  1873  provides  that  "when  two 
or  more  persons  are  boiuid  by  contract  or  by  judgment,  decree 
or  statute,  whether  jointly  only,  or  jointly  and  severally,  or 
severally  only,  and  including  the  parties  to  negotiable  paper, 
common  orders  and  checks  and  sureties  on  the  same  and  sep- 
arate instruments,  or  by  any  liability  growing  out  of  the  same, 
the  action  thereon  may  be  brought  at  the  plaintiff's  option 
against  any  or  all  of  them."  Under  these  provisions  it  is  held 
that  the  guarantor,  when  the  guaranty  is  on  the  same  paper 
with  the  original  instrument,  may  be  joined  as  defendant  with 
maker.  Peddicord  v.  Whitman,  9  Iowa  471 ;  Marvin  v.  Adam- 
son,  11  Iowa  371 ;  Tucker  v.  Shiner,  24  Iowa  33 ;  Stout  v.  Note- 
man,  30  Iowa  414;  Mix  v.  Fairchild,  12  Iowa  351. 

In  Gale  v.  Van  Arman,  18  Ohio  36,  before  the  adoption  of  the 
Code,  the  supreme  court  held  that  "where  a  stranger  to  a  note 
payable  in  checks,  at  the  time  of  the  execution,  wrote  on  the 
back  and  signed  these  words,  '  I  guarantee  the  fulfillment  of  the 
within  contract,'  it  was  a  joint  contract,  and  that  the  parties 
might  be  sued  jointly  upon  it,"  citing  Leonard  v.  Sweetzer,  16 
Ohio  1;  Stage  v.  Olds,  12  Ohio  158;  Bright  v.  Carpenter  & 
Schuer,  9  Ohio  139.  The  decision  is  placed  upon  the  ground 
that  the  instruments  were  executed  by  principal  and  surety  at 
the  same  time,  upon  the  same  consideration,  for  the  same  pur- 
pose, and  took  effect  from  the  same  delivery.  The  dissenting 
opinion  of  Hitchcock,  C.  J.,  seems  to  draw  the  proper  distinc- 
tion between  a  guarantor  and  surety,  which  seems  to  have  been 
overlooked  by  a  majority  of  the  court.    Where  the  guaranty  is 


Sec.  2.]  Joinder  of  Parties.  227 

made  at  the  same  time  with  the  principal  contract,  and  be'.-oines 
an  essential  ground  of  credit,  there  is  no  doubt  the  considera- 
tion extends  to  the  contract  of  guaranty.  But  a  contract  of 
guaranty  is  not  a  primary  obligation  to  pay,  but  is  an  under- 
taking that  the  debtor  will  pay.  The  contract  of  the  inalcer 
and  sureties  upon  a  promissory  note  is  to  pay  the  same.  Tlie 
guarantor  is  not  a  promissor  with  the  maker.  Hoav,  then,  can 
he  be  sued  with  the  maker  of  a  promissory  note  upon  an  obliga- 
tion to  which  he  is  not  a  party?  The  contract  of  guaranty  is 
a  separate  and  independent  contract,  and  the  liability  of  the 
guarantor  is  governed  by  the  express  terms  of  the  contract.  He 
cannot  be  joined  in  an  action  against  the  maker  of  a  note,  he 
not  being  liable  as  maker.^  Phalen  v.  Dinger,  4  E.  D.  Smith 
379;  Ridded  v.  Schuman,  10  Barb.  633;  Tibbets  v.  Percy,  24 
Barb.  39;  Allen  v.  Fosgate,  11  How.  Pr.  218;  Borden  v.  Gilbert, 
13  Wis.  670;  Virden  v.  Ellsworth,  15  Ind.  144;  Bondward  v. 
Bladden,  19  Ind.  160.  It  follows  that  the  judgment  of  the 
district  court  must  be  reversed  and  and  the  cause  remanded 
for  further  proceedings. 

Reversed  and  remanded. 


PHILLIPS  V.  FLYNN. 

Supreme  Court  of  Missouri,  1880.     71  Mo.  424. 

This  was  a  suit  for  rent  against  defendant  Blackburn.  Flynn 
was  joined  as  a  co-defendant.  The  petition  averred  that  he  had 
purchased  of  Blackburn  the  crop  raised  on  the  demised  prem- 
ises ;  that  the  purchase  was  made  with  full  knowledge  that  it 
had  been  so  raised,  and  that  plaintiff's  rent  was  not  paid,  and 
that  plaintiff  was,  therefore,  entitled  to  a  landlord's  lien  upon 
the  crop.  It  further  averred  that  Flynn  had  sold  and  shipped 
the  crop,  so  that  the  lien  could  not  be  specifically  enforced. 
There  was  a  prayer  for  a  general  judgment  against  Blackburn, 
and  a  prayer  that  Flynn  be  required  to  pay  plaintiff  out  of  the 
proceeds  of  the  sale  the  amount  of  such  judgment.     To  this  pe- 

9  See   Graham  v.   Eingo,   67   Mo.        71    Ore.    1,    (1914). 
324,    (1878);    Wolf   v.   Eppenstein, 


228  Parties  to  Actions.  [Chap.  II. 

tition  Flynn  filed  a  demurrer,  which  having  been  overruled,  he 
refused  to  plead  further,  and  after  a  trial  and  verdict  against 
Blackburn,  a  judgment  was  entered  against  both,  from  which 
Flynn  appealed. 

Sherwood,  C.  J.  The  objections  of  the  demurrant  Flynn  to 
the  petition,  were  well  taken  for  these  reasons:  1st,  The  peti- 
tion united  in  the  same  count  two  distinct  causes  of  action,  one 
arising  ex  contractu,  the  other  ex  delicto.  2d,  Two  distinct 
causes  of  action  not  belonging  to  the  same  class,  were  united  in 
the  petition.  3d,  There  was  an  improper  joinder  of  parties  de- 
fendant, Blackburn,  who  was  declared  against  on  a  breach  of 
contract,  and  Flynn  for  a  tort.^"  It  is  unnecessary  to  notice  the 
other  errors  assigned.    Judgment  reversed  and  cause  remanded. 


NICHOLS  V.  MICHAEL. 
Court  of  Appeals  of  New  York,  1861.     23  N.  T.  264. 

Action  to  recover  the  possession  of  certain  goods,  upon  the 
allegation  of  property  in  the  plaintiffs,  and  a  joint  detention  by 
the  defendants. 

In  April,  1853,  the  defendant  Pinner  purchased  of  the  plain- 
tiffs, the  goods  described  in  the  complaint  (the  purchase  amount- 
ing to  $6,500),  on  a  credit  of  four  and  six  months,  for  which  he 
gave  his  two  negotiable  promissory  notes.  Pinner  continued  in 
business  until  the  August  following  when  he  failed,  and  made 
an  assignment  to  the  defendant  Michael,  for  the  benefit  of  his 
creditors,  giving  preferences.  This  action  was  brought  to  re- 
cover the  possession  of  those  goods,  alleging  they  were  fraudu- 
lently obtained.  The  judgment  from  which  this  appeal  was 
brought,  was  obtained  on  a  second  trial.    *    *    * 

The  jury  found  a  verdict  for  the  plaintiffs  for  the  possession 
of  the  property,  and  assessed  the  value  thereof  and  damages  for 

10  And    so    in    Parker   v.    Rodes,  negligent  injury   and   the   bonding 

79     Mo.     88,      (1883).       But     see  Co.   on   the   statutory   bond.      This 

Ehlers     v.     Automobile     Liability  ruling     was     based     on    the     1915 

Co.,    166   Wis.    185,    (1917),    allow-  amendments      to      the      Wisconsin 

ing     a    joint     action     against     the  Code. 
operator    of    an    automobile    for    a 


Sec.  2.]  Joinder  op  Parties.  229 

their  detention — the  property  having  been  delivered  to  the  de- 
fendant ]\Iichael.  Judgment  was  entered  for  the  plaintiffs, 
which  was  affirmed  on  appeal  at  general  term  in  the  eighth  dis- 
trict. 

James,  eT.^  "Whenever  property  is  obtained  from  another  up- 
on credit,  with  the  preconceived  design  on  the  part  of  the  pur- 
chaser to  cheat  and  defraud  the  vendor  out  of  the  same,  the 
vendor,  upon  the  discovery  of  the  fraud,  may  avoid  the  contract 
and  retake  the  property,  unless  it  has  passed  to  the  possession 
of  a  bona  fide  holder  for  value.  Such,  I  understand,  was  the 
conclusion  of  the  court  when  this  case  was  formerly  before  it. 
(18N.  Y.  295;  Hall  V.  Naylor,  18  N.  Y.  588.)     *     *     * 

Michael  having  the  goods  in  possession  was  not  only  a  proper 
but  a  necessary  party  defendant.    But  it  was  insisted  that  Pin- 
ner was  improperly  made  a  party,  and  that  under  the  Code  the 
action  for  the  recovery  of  the  possession  of  personal  property 
can  only  be  maintained  against  one  who  had  in  fact  or  in  law 
the  possession,  control  or  title  at  the  time  of  its  commencement. 
Formerly,  the  action  of  detinue  was  the  proper  action  where 
there  was  a  wrongful  detainer  (2  Saund.  84).    There  are  some 
dicta  in  the  books,  that  this  action  would  not  lie  unless  the  de- 
fendant was  in  possession  (Bui.  N.  P.  51  ;  1  Selw.  N.  P.  546)  ; 
but  that  was  not  so.     The  defendant  was  liable  in  the  action, 
though  he  had  delivered  possession  to  another  before   action 
brought.      (Comyn's  Dig.  A.;  Jones  v.  Dowle,  9  M.  &  W.  19; 
Garth  v.  Howard,  5  C.  &  P.  346.)     In  Jones  v.  Dowle,  Parke, 
B.,  stated  the  rule  to  be  "that  detinue  does  not  lie  against  one 
who  never  had  possession  of  the  chattel,  but  does  against  him 
who  once  had,  but  has  improperly  parted  with  it."    And  Chitty 
says,   *'if   he   wrongfully   delivered   the    goods   to   another   he 
is  liable ;  and  I  think  the  true  rule  was,  that  detinue  would  lie 
wherever  the  defendant  had  been  in  possession,  whether  he  re- 
tained it  or  had  wrongfully  parted  with  it."    In  this  State  the 
action  of  detinue  was  abolished  by  the  Revised  Statutes,  and 
that  of  replevin  extended  so  as  to  serve  all  the  purposes  of  both 
actions,  and  under  that  statute  the  action  of  replevin  would  lie, 
although  the  defendant  had  parted  with  the  property.     (2  R.  S. 
532,  sees.  11,  19;  22  "Wend.  602.)     *    *    * 

1  Parts   of  the   opinion  and  con-       omitted, 
curring     opinion     of     Selden,     J. 


230  Parties  to  Actions.  [Chap.  II. 

In  this  view  of  the  case,  an  action  properly  laid  against  Pin- 
ner, notwithstanding  he  had  assigned  and  delivered  the  property 
to  Michael.  He  had  fraudulently  obtained  the  property  and  had 
it  in  his  possession,  and  wrongfully  parted  with  it.  Michael 
was  not  a  tona  fide  purchaser;  the  property  was  in  his  custody 
as  trustee,  for  the  benefit  of  Pinner's  creditors,  Pinner  having 
an  interest  in  the  residuum  after  paying  his  debts.  Here  was 
such  a  connection  as  would  sustain  a  joint  action  against  the 
defendants.  Pinner  had  fraudulently  obtained  the  goods  and 
wrongfully  transferred  them  to  Michael  to  dispose  of  them  as 
his  trustee ;  IMichael  had  the  possession  and  refused  to  surrender 
it  on  demand.  The  Code  provides  that  any  person  may  be 
made  a  defendant  who  has  or  claims  an  interest  in  the  con- 
troversy adverse  to  the  plaintiff,  or  who  is  a  necessary  party  to 
a  complete  determination  or  settlement  of  the  questions  involved 
therein.  (Sec.  118.)  Both  these  defendants  claim  an  interest 
in  the  goods  adverse  to  the  plaintiffs ;  Pinner  claiming  that  the 
purchase  of  the  goods  was  free  from  fraud,  and  that  they 
should  be  retained  by  his  assignee,  and  disposed  of  for  the  bene- 
fit of  creditors — Michael  claiming  the  possession  for  the  same 
purpose,  and  refusing  to  surrender  on  demand.  They  were 
properly  joined  as  defendants. 

I  have  been  unable  to  discover  any  error  which  calls  for  a 
reversal  of  this  case,  and  the  judgment  should  therefore  be  af- 
firmed, with  costs.    *    *    * 

Selden,  J.  *  *  *  The  theory  upon  which  these  cases'*  pro- 
ceed is  perfectly  sound,  and  applies  directly  to  the  present  case. 
It  is,  that  where  a  person  is  in  possession  of  goods  belonging  to 
another,  which  he  is  bound  to  deliver  upon  demand,  if  he,  with- 
out authority  from  the  owner,  parts  with  that  possession  to  one 
who  refuses  to  deliver  them,  he  is  responsible  in  detinue  equally 
with  the  party  refusing.  He  contributes  to  the  detention.  It  is 
the  consequence  of  his  own  wrongful  delivery.  The  action  in 
such  cases  may  properly  be  brought  against  both;  because  the 
acts  of  both  unite  in  producing  the  detention. 

It  does  not  affect  the  principle,  that  Pinner  in  this  case  came 
to  the  possession  of  the  goods  by  delivery,  and  under  the  former 
purchase,  and  not  as  a  trespasser.     If  they  were  fraudulently 

sin  the  omitted  part  of  the  v.  Howard,  5  C.  &  P.  346,  and 
opinion,  Selden,  J.,  reviewed  Garth      Jones  v.  Dowle,  9  M.  &  W.  19. 


Sec.  2.]  Joinder  of  Parties.  231 

obtained,  he  had  no  right  to  retain  possession  for  one  moment  as 
against  the  plaintiffs,  and  could  transfer  no  such  right  to  his 
assignee.  The  action  proceeds,  not  upon  the  groond  of  a  tor- 
tious taking,  but  of  a  wrongful  detention;  and  to  this.  Pinner 
has  contributed  by  placing  the  goods  in  the  possession  of  the 
defendant  Michael,  who  refused  to  deliver  them.^  The  case  can- 
not be  distinguished  in  principle  from  the  two  English  cases, 
to  which  I  have  referred.    *    *    * 

Judgment  affirmed. 


TROWBRIDGE  v.  FOREPAUGH. 

Supreme  Court  of  Minnesota,  1869.     14  Minn.  133. 

Appeal  from  an  order  of  the  court  of  common  pleas,  Ramsey 
county,  sustaining  a  demurrer  to  the  complaint. 

The  action  is  against  Joseph  L.  Forepaugh,  and  Monroe  and 
Romaine  Shiere,  and  the  city  of  St.  Paul,  for  an  injury  caused 
by  plaintiff  falling  into  a  hole  on  Third  Street,  in  St.  Paul, 
across  the  front  of  defendant  Forepaugh 's  lot.  The  complaint 
alleges  the  excavation  of  the  hole  by  the  defendants  Forepaugh 
and  the  Shieres,  and  that  they  willfully  and  negligently  left  it 
open  without  protection  or  notice,  and  that  plaintiff  fell  into  it 
and  was  injured.  It  alleges  the  duty  of  the  city  to  keep  the 
streets  and  sidewalks  in  repair,  free  from  obstructions,  and  in 
suitable  condition  for  use  and  travel,  notice  to  it,  and  that  it 

3  The  same  rule  applies  in  an  owners  of  trespassing  animals, 
action  for  conversion,  Ess  v.  Brady  v.  Ball,  14  Ind.  317,  (1860). 
Griffith,  128  Mo.  50,  (1895).  In  lu  the  case  of  common  law  torts 
general  the  liability  of  joint  by  a  married  woman  the  liability 
tort-feasors  is  joint  and  several,  of  husband  and  wife  appears  to 
thus  permitting  a  joint  or  a  be  joint  only,  so  as  to  preclude 
separate  action  at  the  option  of  a  separate  action  against  either 
the  plaintiff.  Bigelow  v.  Old  during  coverture,  Flesh  v.  Lind- 
Dominion  Copper  Co.,  225  U.  S.  soy,  115  Mo.  1,  (1893). 
Ill,  and  this  rule  applies  to  the  Under  modern  statutes  a  mar- 
case  of  partners,  Bretherton  v.  ried  woman  may  commit  some 
Wood,  3  Brod.  «&  Bing.  54  (1821):  tort  for  which  she  alone  is  liable. 
Creed  v.  Hartman,  29  N.  Y.  59,  Baum  v.  Mullen,  47  N.  Y.  577, 
(1864);    and    to    the    case    of    co-  (1872). 


232  Parties  to  Actions.  [Chap.  II. 

suffered  the  hole  to  remain  without  protection  or  notice.  The 
defendants,  other  than  the  city,  demurred  for  an  improper 
joinder  of  causes  of  action. 

Wilson,  C.  J.  The  liability  of  the  city  depends  on  a  state  of 
facts  not  affecting  its  co-defendants ;  and  the  converse.  Neither 
is  in  fact  nor  in  law  chargeable  with,  or  liable  on  account  of,  the 
matter  set  up  as  a  cause  of  action  against  the  other.  They  did 
not  jointly  conduce  to  the  injury  by  any  acts  either  of  omission 
or  commission. 

Under  such  circumstances  we  find  no  case  holding  that  a  joint 
action  is  maintainable;  and  we  are  of  the  opinion  that  it  is  un- 
authorized by  any  statute  or  legal  principle.'*  Our  statute, 
which  is  merely  declaratory  of  the  common  law,  forbids  the 
joinder  of  causes  of  action,  which  do  not  affect  all  the  parties  to 
the  action.  Gen.  Sts.  c.  66,  §  98.  For  such  improper  joinder  of 
causes  of  action  any  defendant  may  demur.  There  is  nothing 
in  the  statute,  and  we  discover  no  reason,  requiring  all  the  de- 
fendants to  join  in  such  a  demurrer. 

Order  affirmed. 


COOPER  V.  BLAIR. 

Supreme  Court  of  Oregon,  1886.     14  Ore.  255. 

Thayer,  J.^  The  appellant  commenced  an  action  in  the  court 
below  against  the  respondents  to  recover  damages  for  an  alleged 
conversion  of  a  quantity  of  wheat  which  the  appellant  had 
stored  with  the  respondent  Blair  at  Corvallis,  Benton  County, 
Oregon.  Blair  had  two  warehouses,  in  which  he  received  wheat 
for  storage,  and  dealt  in  buying  and  selling  wheat.    He  received 

4  Ace:  Mineral  City  v.  Gilbow,  There  are  statutes  in  several 
81  Ohio  St.  263,  (1909).  But  see  states  not  only  permitting,  but 
Fortmeyer  v.  Natl.  Biscuit  Co.,  requiring  the  joinder  of  tlie  prop- 
116  Minn.  158,  37  L.  E.  A.  (N.  erty  owner  as  a  defendant  in  ac- 
S.)  569,  (1911),  annotated,  disap-  tion  against  the  City  for  injuries 
proving  the  principal  case  and  due  to  the  condition  of  the  side- 
sustaining  the  joinder  of  the  city  walk,  which  both  the  property 
and  the  property  owner  whom  it  owner  and  the  city  were  bound  to 
had  permitted  to  maintain  an  keep  in  repair. 
opening  in   the   sidewalk.  6  Parts    of   the   opinion   omitted. 


Sec.  2.]  Joinder  of  Parties.  233 

from  appellant  833  bushels,  Oct.  25,  1882,  at  his  warehouse,  on 
First  Street,  Corvallis;  416  7/60  bushels,  at  same  warehouse, 
Sept.  19,  1885 ;  and  at  or  about  that  time  received  from  him 
716  46/60  bushels  at  same  warehoiLse.  A  part  of  the  wheat  so 
stored  the  appellant  subsequently  sold  to  Blair.  He  alleges  that 
he  had  1,365  bushels  and  some  pounds  of  wheat  after  the  sale 
to  Blair,  wliich  he  charged  the  respondents  with  having  con- 
verted. The  respondents,  the  Salem  Capitol  Flouring-mill  Com- 
pany, Limited,  J.  E.  Henkle,  Jacob  Henkle,  and  John  Kitson, 
and  W.  B.  Hamilton,  Zephin  Job,  and  B.  R.  Job,  answer  sep- 
arately; that  is,  the  flouring-mills  company  filed  its  answer; 
the  Henkles  and  Kitson,  who  were  partners,  filed  their  answer 
jointly ;  and  Hamilton  and  Zephin  and  B.  R.  Job,  who  were  also 
partners,  filed  their  answer  jointly.  The  said  respondents  in 
their  said  several  answers  denied  the  main  allegations  of  the 
complaint,  and  set  up  certain  new  matter.  The  flourhig-mills 
company  alleged  that  thej^  purchased  and  paid  full  cash  value 
for  all  of  the  wheat  they  received,  or  that  came  into  their  posses- 
sion, at  or  about  the  time  of  the  alleged  conversion.  Henkle  & 
Co.  alleged  that  they  were  the  owners  of  a  quantity  of  wheat 
which  had  been  stored  in  said  warehouse ;  that  it  was  mixed  in 
bins  with  other  wheat  of  like  grade  and  quality,  with  the  as- 
sent of  the  owners  thereof ;  and  that  they  took  only  2,800  bush- 
els of  M^heat,  which  was  a  less  amount  than  that  stored  therein 
belonging  to  them,  and  which  was  delivered  to  them  by  said 
Blair.  And  Hamilton  &  Co.  alleged  that  they  were  the  own- 
ers of  about  13,132  bushels  of  wheat,  which  had  theretofore 
been  stored  in  said  warehouse,  mixed  as  Henkle  &  Co.'s  wheat 
was,  and  that  Blair  delivered  the  same  to  them;  which  wheat, 
so  received  by  the  respondents,  was  alleged  in  the  several  an- 
swers to  be  the  wheat  they  were  charged  with  having  converted. 
The  said  Blair  filed  no  answer  to  the  complaint. 

Upon  the  trial  of  the  action  the  respondents'  counsel  con- 
tended that  there  could  be  no  recovery  against  the  respondents 
unless  the  alleged  conversion  of  the  wheat  was  their  joint  act, 
and  the  circuit  judge  who  presided  at  the  trial  seemed  to  be  of 
that  opinion,  as  he  finally  non-suited  the  appellant  apparently 
upon  the  ground  that  the  respondents'  acts  in  the  premises  were 
several ;  that  is,  the  flouring  mills  company  acted  for  themselves ; 
Henkle  &  Co.  for  themselves,  and  Hamilton  &  Co.  for  them- 
selves.    The  theory  of  the  appellant's  counsel  seems  to  have 


234  Parties  to  Actions.  [Chap.  II. 

been  that  they  had  a  right,  after  proving  the  amount  of  wheat 
appellant  had  in  the  warehouse  at  the  time  of  the  alleged  con- 
version, to  show  how  much  the  flouring  mills  company  took  out 
of  it,  how  much  Henkle  &  Co.  took  out  of  it,  and  how  much 
Hamilton  &  Co.  took  out  of  it ;  and,  after  ascertaining  what  por- 
tion of  the  wheat  so  taken  belonged  to  him,  recover  from  said 
several  companies  the  amount  taken  by  them,  respectively,  of  his 
wheat. 

It  must  be  conceded,  I  think,  that  these  several  companies 
acted  independently  of  each  other  in  what  they  did  in  regard  to 
the  taking  of  the  wheat.  There  is  not  the  slightest  trace  of  tes- 
timony in  the  case,  as  I  can  discover,  that  they  combined  or  co- 
operated in  taking  away  any  wheat  from  the  warehouse  in  ques- 
tion. The  taking  was  at  different  times,  and  was  clearly  several 
acts,  and  resulted  from  their  several  motives.  Each  company 
took  the  wheat  they  supposed  they  were  severally  entitled  to, 
and  at  their  own  instance,  and  upon  their  own  responsibility; 
and,  unless  the  appellant's  counsel  can  maintain  the  theory  be- 
fore indicated,  the  non-suit  granted  by  the  circuit  judge  must 
stand.  There  were  a  niunber  of  exceptions  taken  to  the  ruling 
of  the  judge  at  the  trial  in  excluding  testimony  offered  upon 
the  part  of  the  appellant ;  but  they  are  unimportant,  unless  the 
appellant  had  the  right  to  recover  severally  against  the  respond- 
ents, as  before  indicated. 

The  view  the  appellant's  counsel  suggested  in  reference  to 
this  question  seems  hardly  tenable;  yet  it  has  been  presented 
wdth  much  force  and  ability,  and  is  sustained  by  many  of  the 
earlier  decisions.  Jackson  v.  Woods,  5  Johns.  278,  and  cases 
there  cited.  That  was  a  case  of  ejectment  against  five  defend- 
ants, who  entered  into  the  consent  rule  jointly,  and  pleaded 
jointly.    *     *    * 

These  two  cases  have  been  referred  to  in  subsequent  decisions 
of  the  New  York  courts,  but  have  never  been  cited  except  in 
ejectment  proceedings  as  they  were  conducted  at  common  law; 
and  all  that  is  said  by  the  court  in  either  of  them  is  only  author- 
ity in  ejectment  suits  as  formerly  prosecuted.    *    *    * 

Chitty  says:  "And,  if  a  joint  action  of  trespass  be  brought 
against  several  persons,  the  plaintiff  cannot  declare  for  an  as- 
sault and  battery  by  one,  and  for  the  taking  away  of  goods  by 
the  others,  because  these  trespasses  are  of  several  natures.  And 
in  trover  against  several  defendants  all  cannot  be  found  guilty 


Sec.  2.]  Joinder  of  Parties.  235 

in  the  same  court  [count?]  without  proof  of  a  joint  conversion 
by  all."  1  Chit.  PI.  86.  And  it  is  declared  in  note  "i"  to  the 
case  of  Wilbraham  v.  Snow,  2  Saund.  Pt.  1  p.  47,  in  these  words : 
"It  is  plain  that  several  defendants  cannot  be  found  guilty  in 
trover  without  evidence  of  a  joint  conversion.  Therefore,  where 
bankrupts  and  their  assignees  were  joined  as  defendants  in  an 
action  of  trover,  and  a  verdict  passed  against  all  the  defendants 
upon  evidence  that  the  bankrupts,  before  their  bankruptcy,  had 
converted  the  goods  of  the  plaintiff  by  pledging  thera  without 
authority,  and  that  the  assignees,  after  the  bankruptcy,  had  re- 
fused to  deliver  them  up  on  demand,  the  court  held  that  the  con- 
versions were  separate,  and  granted  a  new  trial  for  want  of  evi- 
dence of  a  joint  conversion;"  citing  Nieholl  v.  Glennie,  1  IMaule 
&  S.  588.  In  Add.  Torts,  §  1321,  the  same  rule  is  declared,  and 
same  reference  made  to  1  Maule  &  S.  588.  The  author  further 
remarks  in  that  section  that,  "where  an  action  has  been  brought 
against  several  joint  trespassers,  the  evidence  must  be  confined 
to  the  joint  offenses  in  which  all  are  implicated."  Mr.  Pomeroy 
in  his  work  on  Remedial  Rights  and  Remedies,  in  section  308, 
after  stating,  in  the  previous  section,  that  those  who  have  united 
in  the  commission  of  a  tort  to  the  person  or  the  property, 
whether  the  injury  be  done  by  force,  or  be  the  result  of  negli- 
gence or  want  of  skill  or  of  fraud  and  deceit,  are  generally  liable 
to  the  injured  party  without  any  restriction  or  limit  upon  his 
choice  of  defendants  against  whom  he  may  proceed,  says:  "In 
order,  however,  that  the  general  rule  thus  stated  should  apply, 
and  a  union  of  wrongdoers  in  one  action  should  be  possible,  there 
must  be  some  community  in  the  wrongdoing  among  the  parties 
who  are  to  be  united  as  co-defendants.  The  injury  must  in  some 
sense  be  their  joint  work.  It  is  not  enough  that  the  injured 
party  has,  on  certain  grounds,  a  cause  of  action  against  one  for 
the  physical  torts  done  to  himself  or  his  property,  and  has,  on 
entirely  different  grounds,  a  cause  of  action  against  another  for 
the  same  physical  tort.  There  must  be  something  more  than  the 
existence  of  two  separate  causes  of  action  for  the  same  act  or 
default  to  enable  him  to  join  the  two  parties  liable  in  the  single 
action."  This  principle,  he  there  says,  is  of  universal  applica- 
tion. In  Forbes  v.  Marsh,  15  Conn.  384,  the  court  held  that, 
"where  the  plaintiff  in  an  action  of  trover  against  B  and  C,  in- 
troduced evidence  proving  a  conversion  by  B  only,  without  the 


236  Parties  to  Actions.  [Chap.  II. 

participation  or  knowledge  of  C,  that  it  was  not  then  competent 
to  prove  a  distinct  conversion  by  C." 

This  was  the  predicament  the  appellant  found  himself  in  at 
the  trial  of  this  case.     He  had  joined  the  three  parties,  the 
flouring-mills  company,  Henkle  &  Co.,  and  Hamilton  &  Co.,  in 
a  single  action,  and  then  attempted  to  introduce  evidence  prov- 
ing a  conversion  by  one  of  them  only.     He  could  only  be  per- 
mitted to  prove  an  act  of  conversion  upon  the  part  of  one  of  the 
parties  under  an  offer  to  show  that  the  others  participated  in 
the  act  in  some  way ;  and,  unless  he  could  make  such  showing, 
he  would  be  confined  to  his  claim  against  the  one  party.     Or  he 
might  have  been  permitted  to  show  that  all  the  parties  took  and 
carried  away  the  wheat  at  different  times,  under  an  offer  to 
show  that  there  had  been  a  combination  entered  into  between 
them  for  that  purpose;  and,  if  he  failed  to  show  the  common 
purpose,  he  would  have  had  to  submit  to  a  non-suit  unless  the 
court    permitted    him    to    amend    his    complaint,    and    proceed 
against  one  of  the  parties.     Section  99   of  the  Civil  Code  is 
broad  enough,  I  think,  to  have  allowed  such  an  amendment; 
but  to  attempt  to  proceed  against  the  respondents  jointly  on 
account  of  a  several  liability  is  not  warranted  by  law  in  such  a 
case  as  this  was.    We  virtually  held  that  in  Dahms  v.  Sears,  11 
Pac.  Rep.  891  (recently  decided  by  this  court).     The  difficulty 
in  this  class  of  cases  has  been  in  attempting  to  apply  the  general 
rule  that  torts  are  joint  and  several,  and  that  in  a  joint  action 
against  several  defendants  one  or  more  may  be  found  guilty,  and 
the  others  acquitted ;  but  in  the  class  of  cases  to  which  that  rule 
applies,  as  was  said  by  Judge  Dillon,  in  Turner  v.  Hitchcock, 
20  Iowa  316,  the  injury  sued  for  is  an  entirety.    "The  injury  is 
single,  though  the  wrongdoers  may  be  numerous."     It  has  no 
application  to  a  case  where  distinct  injuries  have  been  com- 
mitted by  the  several  defendants.    If  B  were  to  go  to  A's  barn, 
and  unlawfully  carry  away  10  bushels  of  his  wheat,  and  C,  in 
like  manner,  were  to  go  at  another  time,  and  carry  away  30 
bushels  more,  and  there  had  been  no  concert  of  action  between 
them  in  the  matter,  but  each  had  acted  for  himself,  it  would  be 
absurd  to  sue  them  together  in  one  action  for  the  conversion  of 
the  amount  of  wheat  so  taken.    Yet  this  is  the  position  the  ap- 
pellant occupies  in  the  case  at  circuit,  and  he  either  had  to  con- 
fine his  proof  to  one  of  the  acts,  and  to  the  party  committing  it, 
or  obtain  leave  of  the  court  to  amend  his  complaint  after  the 


Sec.  2.]  Joinder  op  Parties.  237 

proof  disclosed  the  dilemma  he  was  in,  or  submit  to  a  nonsuit. 
There  could  have  been  only  one  recovery  in  the  case,  and  tliat 
had  to  be  against  the  party  or  parties  who  did  the  act  for  which 
it  was  obtained.^    *    *    * 

Judgment  affirmed. 


SIMMONS  V.  EVERSON. 
Court  of  Appeals  of  Netv  York,  1891.     124  N.  Y.  319. 

Appeal  from  a  judgment  of  the  general  term  of  the  fourth 
judicial  department,  affirming  a  judgment  entered  on  the  de- 
cision of  the  circuit  court. 

The  trial  court  found  that  for  many  years  prior  to  October 
18,  1887,  the  appellants  owned  in  severalty,  three  lots,  each  be- 
ing 22  feet  wide,  and  bounded  on  the  east  by  the  center  line  of 
South  Salina  street  in  the  city  of  Syracuse.  The  south  lot  was 
owned  by  the  defendant  Lynch,  the  middle  one  by  the  defendant 
Pierce,  and  the  north  one  by  the  defendant  Everson.  On  these 
lots  stood  three  brick  stores,  separated  from  each  other  by  brick 
partition  walls  extending  from  the  foundations  to  the  roofs.  A 
continuous  brick  wall  of  uniform  height  (about  sixty  feet)  and 
thickness  stood  adjacent  to  the  west  line  of  the  street,  and 
formed  the  front  of  the  buildings.  The  partition  walls  and  the 
front  wall  were  interlocked,  or  built  together.  On  the  date  men- 
tioned the  three  stores  were  substantially  destroyed  by  fire, 
nothing  being  left  standing  except  the  front  wall,  a  part  of  the 
partition  walls,  and  a  small  part  of  the  woodwork  in  tlie  front 
of  Everson 's  building.  Shortly  after  this  event  the  front  wall 
began  to  lean  towards  the  street,  and  continued  to  incline  more 
and  more  in  that  direction  until  Nov.  17,  1887,  when  it  gave  way 
near  the  point  where  it  was  united  with  the  partition  wall  be- 
tween the  buildings  of  Lynch  and  Pierce,  carrying  down  the 
entire  front  and  part  of  both  partition  walls.     Material  from 

6  See   also    Cogswell   v.   Murphy,  acting    independently;    O'Brien    v. 

46  la.  44   (1877),  separate  owners  Fitzgerald,   143   N.   Y.   377,   direet- 

of    trespassing    animals;    Chipman  ors  of  a  corporation,  charged  with 

V.    Palmer,    77    N.    Y.    51,    (1879),  separate    acts    of    negligence    and 

pollution   of   a   stream   by   several  mismanagement. 


288  Paeties  to  Actions.  [Chap.  II. 

the  part  of  the  front  wall,  standing  on  the  lots  of  Pierce  and 
Everson,  and  from  their  partition  wall  fell  on  and  killed  the 
plaintiff's  intestate,  who  was  lawfully  on  the  sidewalk  near  the 
boundary  between  their  properties.  No  part  of  the  walls  on 
Lynch 's  lot  fell  on  decedent.  It  was  found  that  immediately 
after  the  fire  the  front  and  part  of  the  partition  walls  became 
weak,  unsafe,  dangerous,  and  liable  to  fall  into  the  street,  and 
that  each  of  the  defendants  was  careless  and  negligent  in  not  re- 
moving or  supporting  the  w^alls  on  his  own  lot,  and  that  the  sev- 
eral neglects  of  the  defendants  united  and  directly  caused  the 
walls  to  fall.  It  was  further  found  that  these  walls  were  so  un- 
safe that  they  were  a  public  nuisance,  and  also  that  the  de- 
cedent did  not  negligently  contribute  to  the  accident  or  to  his 
own  death.     The  damages  were  assessed  at  $5,000. 

FoLLETT,  C.  J.  (after  stating  the  facts  as  above)  :  It  is  urged 
in  behalf  of  the  defendants  that  at  most  this  is  but  a  case  of 
several  independent  acts  of  negligence  committed  by  each,  the 
joint  effect  of  which  caused  the  accident,  and  for  which  they  are 
not  jointly  liable  within  the  rule  laid  down  in  Shipman  v.  Pal- 
mer, 77  N.  Y.  51.  The  case  at  bar  does  not  belong  to  the  class 
of  actions  arising  out  of  acts  or  omissions  which  are  simply  neg- 
ligent,' and,  while  the  defendants  did  not  intend  by  their  several 
acts  to  commit  the  injury,  their  conduct  created  public  nuisance, 
which  is  an  indictable  misdemeanor  under  the  statutes  of  this 
state  (Pen.  Code,  §§  385,  387;  Vincent  v.  Cook,  4  Hun.  318;) 
and  at  common  law  (Reg.  v.  Watts,  1  Salk.  357;  Reg.  v.  Watson, 
2  Ld.  Raym.  856;  1  Russ.  Crimes,  5th  edition  423;  2  Whart. 
Crim.  Law,  §  1410;  Bigelow,  Torts  237;  Pol.  Torts,  2nd  ed. 
845;  Steph.  Dig.  Crim.  Law,  art.  176;  Indian  P.  C.  §  268). 
Persons  who  by  their  several  acts  or  omissions  maintain  a  pub- 
lic or  common  nuisance  are  jointly  and  severally  lialjle  for  such 
damages  as  are  the  direct,  immediate,  and  probable  consequence 
of  it.  Irvine  v.  Wood,  51  N.  Y.  224,  230 ;  Slater  v.  Mersereau, 
64  N.  Y.  138 ;  Timlin  v.  Oil  Co.,  7  N.  Y.  Supp.  158 ;  Klauder  v. 

7  See   Colgreve  v.  Ky.,  20  N.  Y.  Vviiere     defendants     independently 

492,      (1859),      railroad      accident  obstructed    a    stream, 

caused   by   tlie   independent   negli-  For  the  .ioinder  of  the  manufac- 

gence   of   two   railroads   using   the  turers  and  sellers  of  defective  and 

same   track:  dangerous  articles,  see  Clement   v. 

Compare  Lull  v.  Fox  Eiver  Crosby,  10  L.  E.  A.  (N.  S.)  588. 
Imp.     Co.     19     Wis.     100,     (1865) 


Sec.  2.]  Joinder  op  Parties.  239 

McGrath,  35  Pa.  St.  128 ;  1  Shear  &  R.  Neg.  (4th  ed.)  §  122 ; 
Pol.  Torts,  (2iid  ed.)  356.  Tlie  fall  of  these  four-story  brick 
walls,  into  the  street  was  the  direct  and  immediate  consequence 
of  the  several  acts  of  the  defendants  in  snfferinjj  the  portions 
standing  on  their  own  lots  to  remain  unsupported  after  they  had 
begun  visibly  to  incline  towards  the  street,  and  it  was  as  obvious 
before,  as  it  was  after  the  accident,  that  if  any  part  of  the  front 
wall  fell,  a  large  part  of  it  must,  and  that  it  would  go  into  the 
street.  The  judgment  should  be  affirmed,  with  costs.  All  con- 
cur, except  Vann,  J.,  not  voting. 


GREENBERG  v.  WHITCOMB  LUMBER  CO. 
Supreme  Court  of  Wisconsin,  1895.     90  Wis.  225. 

The  defendants  separately  demurred  to  the  complaint  on  the 
grounds  of  misjoinder  of  causes  of  action,  and  failure  to  state 
facts,  sufficient,  etc.  The  court  sustained  the  demurrer  of  the 
defendant  Semple  and  overruled  the  demurrer  of  the  defendant 
Whitcomb  Lumber  Co.' 

Newman,  J. :  The  complaint  states,  in  substance,  that  the 
defendant  the  Whitcomb  Lumber  Company  is  a  corporation; 
that  the  defendant  Parian  Semple  was  one  of  its  officers  and  its 
general  managing  agent;  that  its  business  was  the  manufac- 
turing of  timber  into  firewood;  that  it  operated,  in  this  work, 
a  machine  which  was  defective  and  dangerous ;  that  it  knew  the 
machine  to  be  defective  and  dangerous;  that  the  defect  which 
rendered  it  dangerous  was  that  the  saw  was  defectively  and  in- 
securely fastened  to  its  shaft ;  that  the  plaintiff  was  employed  to 
work  upon  or  with  this  machine;  that  he  was  inexperienced  in 
such  work  and  as  to  such  machine,  and  did  not  know  of  the 
defect  of  the  machine ;  that  the  defendants  knew  that  he  was  so 
inexperienced  and  ignorant;  that  plaintiff  received  no  instruc- 
tions; that  he  was  injured,  without  his  fault,  by  reason  of  the 
defect  of  the  machine.  Fairly  construed,  this  is  the  substance 
of  the  complaint.  It  was  the  duty  of  the  defendant  the  Whit- 
comb Lumber  Company  to  furnish  the  plaintiff  a  safe  machine 

8  statement   condensed. 


240  Pakties  to  Actions.  [Chap.  II. 

to  work  with,  and  knowing  the  defect  of  the  machine  and  that 
he  was  inexperienced,  to  instruct  him  of  the  dangers  of  the  em- 
ployment. Not  to  do  this  was  negligence.  The  complaint  states 
a  cause  of  action  against  the  defendant  the  Whitcomb  Lumber 
Company. 

"Whether  the  complaint  states  a  cause  of  action  against  the  de- 
fendant Parian  Semple  is  more  complex.    He  was  the  agent  or 
servant  of  the  Whitcomb  Lumber  Company,  charged  with  the 
oversight  and  management  of  its  operations,  and  with  the  duty 
of  providing  a  safe  machine  for  the  work  in  which  the  plaintiff 
was  engaged.     The  principle  is  well  settled  that  the  agent  or 
servant  is  responsible  to  third  persons  only  for  injuries  which 
are  occasioned  by  his  misfeasance,  and  not  for  those  occasioned 
by  his  mere  non-feasance.     Some  confusion  has  arisen  in  the 
cases,  from  a  failure  to  observe  clearly  the  distinction  between 
non-feasance  and  misfeasance.    These  terms  are  very  accurately 
defined,  and  their  application  to  questions  of  negligence  pointed 
out,  by  Judge  Metcalf  in  Bell  v.  Josselyn,  3  Gray  (Mass.)  309. 
''Non-feasance,"  says  the  learned  judge,  "is  the  omission  of  an 
act  which  a  person  ought  to  do;  misfeasance  is  the  improper 
doing  of  an  act  which  a  person  might  lawfully  do ;  malfeasance 
is  the  doing  of  an  act  which  a  person  ought  not  to  do  at  all." 
The  application  of  these  definitions  to  the  case  at  bar  is  not 
difficult.     It  was  Semple 's  duty  to  have  had  this  machine  safe. 
His  neglect  to  do  so  was  non-feasance.     But  that  alone  would 
not  have  harmed  the  plaintiff,  if  he  had  not  set  him  to  work 
upon  it.     To  set  him  to  work  upon  this  defective  and  dangerous 
machine,  knowing  it  to  be  dangerous,  was  doing  improperly  an 
act  which  one  might  lawfully  do  in  a  proper  manner.     It  was 
misfeasance.    Both  elements,  non-feasance  and  misfeasance,  en- 
tered into  the  act,  or  fact,  which  caused  the  plaintiff's  dam- 
ages.    But  the  non-feasance  alone  could  not  have  produced  it. 
The  misfeasance  was  the  efficient  cause.    For  this  the  defendant 
Semple  is  responsible  to  the  plaintiff.     Mechem,  Ag.  see.  569 
et  seq.;  14  Am.  &  Eng.  Enc.  Law  873,  and  cases  cited  in  note  4; 
Wood  Mast.  &   Serv.    (2d  Ed.)    667;   Osborn  v.  Morgan,   130 
Mass.  102.     The  complaint  states  but  a  single  cause  of  action. 
It  is  the  same  cause  of  action  against  both  defendants,  arising 
from  the  same  acts  of  negligence, — the  master  for  the  negligence 
of  its  servant ;  the  servant  for  his  own  misfeasance.    Both  mas- 
ter and  servant,  being  liable  for  the  same  acts  of  negligence, 


Sec.  2.]  Joinder  op  Parties.  241 

may  be  joined  as  defendants.^  Wood,  i\rast.  &  Serv.,  supra; 
Wright  V.  Wilcox,  19  Wend.  343 ;  Phelps  v.  Wait,  30  N.  Y.  78. 
The  order  appealed  from  by  the  Whitcomb  Lumber  Company  is 
affirmed,  and  the  order  appealed  from  by  the  plaintiff  is 
reversed. 


SHIELDS  V.  BARROW. 
Supreme  Court  of  United  States,  1854.     17  Howard  130. 

Curtis,  J.,  delivered  the  opinion  of  the  court. 

To  make  intelligible  the  questions  decided  in  this  case,  an 
outline  of  some  part  of  its  complicated  proceedings  must  be 
given.  They  were  begun  by  a  bill  in  equity,  filed  in  the  circuit 
court  of  the  United  States  for  the  eastern  district  of  Louisiana, 
on  the  19th  of  December,  1842,  by  Robert  R.  Barrow,  a  citizen 
of  the  state  of  Louisiana,  against  Mrs.  Victoire  Shields,  and 
by  amendment  against  William  Bisland,  citizens  of  the  State 
of  Mississippi.  The  bill  stated,  that  in  July,  1836,  t\\(i  com- 
plainant sold  certain  plantations  and  slaves  in  Louisnana,  to 
one  Thomas  R.  Shields,  who  was  a  citizen  of  Louisiana,  for 
the  sum  of  $227,000,  payable  by  installments,  the  last  of  which 
would  fall  due  in  March,  1844. 

That  negotiable  paper  was  given  for  the  consideration  money, 

9  Ace:     Mayburg   v.   North    Pac.  Court   as   a  separable   controversy, 

Ey.  Co.,   100  Minn.  79,    (1907),  12  and  the  mere  fact  that  the  joinder 

L.    E.   A.    (N.    S.)    675,    annotated  may   have    been    made   to    prevent 

case.  removal  will  not   make  it   fraudu- 

But   see  French  v.   Central  Con-  lent,  C.  R.  I.  &  P.  Ry.  v.  Dowdell 

struction    Co.,    76    Ohio    St.    509,  229   U.   S.   102    (1912). 
(1907),   12   L.   R.   A.    (N.   S.)    669,  See   also,   McAllister   v.   C.   &   O. 

annotated,   refusing    to    apply    the  Ry.    Co.,    243    U.    S.    302,    (1917), 

rule  to   a  case  where  the  liability  where  a  statute  was  construed  as 

of  the  master  rested  solely  on  the  imposing   a   joint    liability   on   the 

doctrine   of  respondeat   superior.  lessor  and  the  lessee  for  the  torts 

Where  the  joinder  is  proper  un-  of  the   latter. 
der  the  state  practice,  the  joinder  For  a  case  of  fraudulent  join(]er 

of    a    resident    employee    with    a  to  prevent  removal,  see  Wecker  v. 

non-resident     employer,     will    pre-  Natl.    Enameling    Co.,    204    U.    S. 

vent     the     removal     of    the     case  176,    (1907). 
against  the   latter  to  the  Federal 


242  Parties  to  Actions.  [Chap.  II. 

and  from  time  to  time  $107,000  was  paid.  That  tlie  residue  of 
the  notes  being  unpaid,  and  some  of  them  protested  for  non- 
payment, a  judgment  was  obtained  against  Thomas  R.  Shields, 
the  purchaser,  for  a  part  of  the  purchase-money,  and  proceed- 
ings instituted  by  attachments  against  Thomas  R.  Shields  and 
William  Bisland,  one  of  his  indorsers,  for  other  parts  of  the 
purchase-money  then  due  and  unpaid.  In  this  condition  of 
things,  an  agreement  of  compromise  and  settlement  was  made, 
on  the  9th  day  of  November,  1842,  between  the  complainant, 
of  the  first  part,  Thomas  R.  Shields,  the  purchaser,  of  the  second 
part,  and  six  indorsers  on  the  notes  given  by  Thomas  R.  Shields, 
of  the  third  part.  Of  these  six  indorsers,  Mrs.  Shields  and  Bis- 
land, the  defendants  were  two.  By  this  new  contract,  the  com- 
plainant was  to  receive  back  the  property  sold,  retain  the  $107,- 
000  already  paid,  and  the  six  indorsers  executed  their  notes, 
payable  to  the  complainant,  amounting  to  thirty-two  thousand 
dollars,  in  the  manner  and  proportions  following,  as  stated  in 
the  bill : 

''The  said  William  Bisland  pays  ten  thousand  dollars,  in 
two  equal  instalments,  the  first  in  March  next,  and  the  other 
in  March  following,  for  which  sum  the  said  William  Bisland 
made  his  two  promissory  notes,  indorsed  by  John  P.  Watson, 
and  payable  at  the  office  of  the  Louisiana  Bank  in  New  Orleans. 
The  said  R.  G.  Ellis  $6,966.66,  on  two  notes  indorsed  by  Wil- 
liam Bisland.  The  said  George  S.  Guion,  $2,750,  on  two  notes 
indorsed  by  Van  P.  Winder.  The  said  Van  P.  Winder,  $2,750, 
on  two  notes  indorsed  by  George  S.  Guion.  The  said  William 
B.  Shields,  $4,766.66,  on  two  notes  indorsed  by  Mrs.  Victoire 
Shields ;  and  finally,  Mrs.  Victoire  Shields  the  same  amount  on 
two  notes  payable  as  aforesaid  at  the  office  of  the  Louisiana 
Bank,  in  New  Orleans." 

The  complainant  was  to  release  the  purchaser,  Thomas  R. 
Shields,  and  his  indorsers,  from  all  their  liabilities  then  out- 
standing, and  was  to  dismiss  the  attachment  suit  then  pending 
against  Thomas  R.  Shields  and  Bisland. 

The  bill  further  alleges,  that  though  the  notes  were  given, 
and  the  complainant  went  into  possession  under  the  agreement 
of  compromise,  the  agreement  ought  to  be  rescinded,  and  the 
complainant  restored  to  his  original  rights  under  the  contract 
of  sale;  and  it  alleges  various  reasons  therefor,  which  it  is  not 
necessary  in  this  connection  to  state.    It  concludes  with  a  prayer 


Sec.  2.]  Joinder  of  Parties.  243 

that  the  act  of  compromise  may  be  declared  to  have  been  im- 
properly procured,  and  may  be  annulled  and  .set  aside,  and  that 
the  defendants  may  be  decreed  to  pay  such  of  the  notes,  bear- 
ing their  indorsement,  as  may  fall  due  during  the  progress  of 
the  suit,  and  for  general  relief. 

Such  being  the  scope  of  this  bill  and  its  parties,  it  is  per- 
fectly clear  that  the  circuit  court  of  the  United  States  for 
Louisiana,  could  not  make  any  decree  thereon.  The  contract 
of  compromise  was  one  entire  subject,  and  from  its  nature  could 
not  be  rescinded,  so  far  as  respected  two  of  the  parties  to  it, 
and  allowed  to  stand  as  to  the  others.  Thomas  R.  Shields,  the 
principal,  and  four  out  of  six  of  his  indorsers,  being  citizens  of 
Louisiana,  could  not  be  made  defendants  in  this  suit;  yet  each 
of  them  was  an  indispensable  party  to  a  bill  for  the  rescission 
of  the  contract.  Neither  the  act  of  congress  of  February  28, 
1839,  5  Stats,  at  Large  321,  section  1,  nor  the  47thio  rule  for 
the  equity  practice  of  the  circuit  courts  of  the  United  States, 
enables  a  circuit  court  to  make  a  decree  in  equity,  in  the  absence 
of  an  indispensable  party,  whose  rights  must  necessarily  be 
affected  by  such  decree. 

In  Russell  v.  Clarke's  Executors,  7  Craneh  98,  this  court  said: 
"The  incapacity  imposed  on  the  circuit  court  to  proceed  against 
any  person  residing  within  the  United  States,  but  not  within 
the  district  for  which  the  court  may  be  holden,  would  certainly 
justify  them  in  dispensing  with  parties  merely  formal.  Perhaps 
in  cases  where  the  real  merits  of  the  cause  may  be  determined 
without  essentially  affecting  the  interests  of  absent  persons,  it 
may  be  the  duty  of  the  court  to  decree,  as  between  the  parties 
before  them.  But,  in  this  case,  the  assignees  of  Robert  ]\Iurray 
and  Co.  are  so  essential  to  the  merits  of  the  question,  and  may 
be  so  much  affected  by  the  decree,  that  the  court  cannot  proceed 

10  Eule     47     has     been     slightly  of  being  made  parties,   or  because 

amended  and  now  appears  as  Rule  their  joinder  would  oust  the  juris- 

39,    Equity    Rules,    1912    198    Fed.  diction  of  the  court  as  to  the  par- 

XXIX:  ties    before    the    court,    the    court 

"In  all  cases  where  it  shall  ap-  niay,   in  its  discretion,  proceed  in 

pear    to    the    court    that    persons,  the    cause    without     making    such 

who    might    otherwise    be    deemed  persons  parties;   and  in  such  cases 

proper  parties  to  the  suit,  cannot  the   decree    shall   be   without   prej- 

be  made  parties  by  reason  of  their  udice   to   the  rights   of  the   absent 

being    out    of    the    jurisdiction    of  parties." 
the   court,   or  incapable   otherwise 


244  Parties  to  Actions.  [Chap.  II. 

to  a  final  decision  of  the  cause  tiU  they  are  parties." 

The  court  here  points  out  three  classes  of  parties  to  a  bill 
in  equity.  They  are:  1.  Formal  parties.  2.  Persons  having 
an  interest  in  the  controversy,  and  who  ought  to  be  made  par- 
ties, in  order  that  the  court  may  act  on  that  rule  which  requires 
it  to  decide  on,  and  finally  determine  the  entire  controversy,  and 
do  complete  justice,  by  adjusting  all  the  rights  involved  in  it. 
These  persons  are  commonly  termed  necessary  parties;  but  if 
their  interests  are  separable  from  those  of  the  parties  before  the 
court,  so  that  the  court  can  proceed  to  a  decree,  and  do  complete 
and  final  justice,  without  affecting  other  persons  not  before  the 
court,  the  latter  are  not  indispensable  parties.  3.  Persons  who 
not  only  have  an  interest  in  the  controversy,  but  an  interest  of 
such  a  nature  that  a  final  decree  cannot  be  made  without  either 
affecting  that  interest,  or  leaving  the  controversy  in  such  a  con- 
dition that  its  final  termination  may  be  wholly  inconsistent  with 
equity  and  good  conscience. 

A  bill  to  rescind  a  contract  affords  an  example  of  this  kind. 
For,  if  only  a  part  of  those  interested  in  the  contract  are  before 
the  court,  a  decree  of  rescission  must  either  destroy  the  rights 
of  those  who  are  absent,  or  leave  the  contract  in  full  force  as 
respects  them ;  while  it  is  set  aside,  and  the  contracting  parties 
restored  to  their  former  condition,  as  to  the  others.  We  do  not 
say  that  no  case  can  arise  in  which  this  may  be  done;  but  it 
must  be  a  case  in  which  the  rights  of  those  before  the  court  are 
completely  separable  from  the  rights  of  those  absent,  otherwise 
the  latter  are  indispensable  parties. 

Now  it  will  be  perceived,  that  in  Russell  v.  Clark's  Executors, 
this  court,  after  considering  the  embarrassments  which  attend 
the  exercise  of  the  equity  jurisdiction  of  the  circuit  courts  of 
the  United  States,  advanced  as  far  as  this :  They  declared  that 
formal  parties  may  be  dispensed  with  when  they  cannot  be 
reached;  that  persons  having  rights  which  must  be  affected  by 
a  decree,  cannot  be  dispensed  with;  and  they  express  a  doubt 
concerning  the  other  class  of  parties.  This  doubt  is  solved  in 
favor  of  the  jurisdiction  in  subsequent  cases,  but  without  in- 
fringing upon  what  was  held  in  Russell  v.  Clarke's  Executors, 
concerning  the  incapacity  of  the  court  to  give  relief,  when  that 
relief  necessarily  involves  the  rights  of  absent  persons.  As  to 
formal  or  unnecessary  parties,  see  Wormley  v.  "VVormley,  8 
Wheat.  451 ;  Carneal  v.  Banks,  10  ibid.  188 ;  Vattier  v.  Hinde, 


Sec.  2.]  Joinder  of  Parties.  245 

7  Pet.  266.  As  to  parties  having  a  substantial  interest,  but  not 
so  connected  with  the  controversy  that  their  joinder  is  indis- 
pensable, see  Cameron  v.  M 'Roberts,  3  Wheat.  591  ;  Osborn  v. 
The  Bank  of  the  United  States,  9  ibid.  738 ;  Harding  v.  Handy, 
11  ibid.  132.  As  to  parties  having  an  interest  wliieh  is  insep- 
arable from  the  interests  of  those  before  the  court,  and  who 
are,  therefore,  indispensable  parties,  see  Cameron  v.  M 'Rob- 
erts, 3  ibid.  591 ;  Mallow  v.  Hinde,  12  ibid.  197. 

In  Cameron  v.  M 'Roberts,  where  the  citizenship  of  the  other 
defendants  than  Cameron  did  not  appear  on  the  record,  this 
court  certified:  "If  a  joint  interest  vested  in  Cameron  and  the 
other  defendants,  the  court  had  no  jurisdiction  over  the  cause. 
If  a  distinct  interest  vested  in  Cameron,  so  that  substantial  jus- 
tice (so  far  as  he  was  interested)  could  be  done  without  affect- 
ing the  other  defendants,  the  jurisdiction  of  the  court  might  be 
exercised  as  to  him  alone."  And  the  grounds  of  this  distinc- 
tion are  explained  in  Mallow  v.  Hinde,  12  Wheat.  196,  198. 

Such  was  the  state  of  the  laws  on  this  subject  when  the  act 
of  congress  of  February  28,  1839,  5  Stats,  at  Large  321,  was 
passed,  and  the  47th  rule,  for  the  equity  practice  of  the  circuit 
court  of  the  United  States,  was  made  by  this  court. 

The  first  section  of  that  statute  enacts:  "That  when  in  any 
suit,  at  law  or  in  equity,  commenced  in  any  court  of  the  United 
States,  there  shall  be  several  defendants,  any  one  or  more  of 
whom  shall  not  be  inhabitants  of,  or  found  within,  the  district 
where  the  suit  is  brought,  or  shall  not  voluntarily  appear  there- 
to, it  shall  be  lawful  for  the  court  to  entertain  jurisdiction,  and 
proceed  to  the  trial  and  adjudication  of  such  suit  between  the 
parties  who  may  be  properly  before  it;  but  the  judgment  or 
decree  rendered  therein  shall  not  conclude  or  prejudice  other 
parties  not  regularly  served  with  process,  or  not  voluntarily 
appearing  to  answer;  and  the  non-joinder  of  pai'ties  who  are 
not  so  inhabitants,  or  found  within  the  district,  shall  constitute 
no  matter  of  abatement  or  other  objection  to  said  suit." 

This  act  relates  solely  to  the  non-joinder  of  persons  who  are 
not  within  the  reach  of  the  process  of  the  court.  It  does  not 
affect  any  case  where  persons,  having  an  interest,  are  not  joined 
because  their  citizenship  is  such  that  their  joinder  would  defeat 
the  jurisdiction;  and,  so  far  as  it  touches  suits  in  equity,  we 
understand  it  to  be  no  more  than  a  legislative  affirman(!e  of  the 
rule  previously  established  by  the  cases  of  Cameron  v.  M'Rob- 


246  Parties  to  Actions.  [Chap.  II. 

erts,  3  Wheat.  591 ;  Osborn  v.  The  Bank  of  the  United  States, 
9  ibid.  738;  and  Harding  v.  Handy,  11  ibid.  132.  For  this 
court  had  already  there  decided,  that  the  non-joinder  of  a  party 
who  could  not  be  served  with  process,  would  not  defeat  the 
jurisdiction.  The  act  says,  it  shall  be  lawful  for  the  court  to 
entertain  jurisdiction;  but,  as  is  observed  by  this  court,  in 
Mallow  V.  Hinde,  12  Wheat.  198,  when  speaking  of  a  case  where 
an  indispensable  party  was  not  before  the  court,  "we  do  not 
put  this  case  upon  the  ground  of  jurisdiction,  but  upon  a  much 
broader  ground,  which  must  equally  apply  to  all  courts  of 
equity,  whatever  may  be  their  structure  as  to  jurisdiction;  we 
put  it  on  the  ground  that  no  court  can  adjudicate  directly  upon 
a  person's  right,  without  the  party  being  either  actually  or 
constructively  before  the  court." 

So  that,  while  this  act  removed  any  difficulty  as  to  jurisdic- 
tion, between  competent  parties,  regularly  served  with  process, 
it  does  not  attempt  to  displace  that  principle  of  jurisprudence 
on  which  the  court  rested  the  case  last  mentioned.  And  the 
47th  rule  is  only  a  declaration,  for  the  government  of  practi- 
tioners and  courts,  of  the  effect  of  this  act  of  congress,  and  of 
the  previous  decisions  of  the  court,  on  the  subject  of  that  rule. 
Hagan  v.  Walker,  14  How.  36.  It  remains  true,  notwithstand- 
ing the  act  of  congress  and  the  47th  rule,  that  a  circuit  court 
can  make  no  decree  affecting  the  rights  of  an  absent  person,  and 
can  make  no  decree  between  the  parties  before  it,  which  so  far 
involves  or  depends  upon  the  rights  of  an  absent  person,  that 
complete  and  final  justice  cannot  be  done  between  the  parties 
to  the  suit  without  affecting  those  rights.  To  use  the  language 
of  this  court,  in  Elmendorf  v.  Taylor,  10  Wheat.  167:  "If  the 
case  may  be  completely  decided,  as  between  the  litigant  parties, 
the  circumstances  that  an  interest  exists  in  some  other  person 
whom  the  process  of  the  court  cannot  reach,— as  if  such  party 
be  a  resident  of  another  State,— ought  not  to  prevent  a  decree 
upon  its  merits."  But  if  the  case  cannot  be  thus  completely 
decided,  the  court  should  make  no  decree. 

We  have  thought  it  proper  to  make  these  observations  upon 
the  effect  of  the  act  of  congress  and  of  the  47th  rule  of  this 
court,  because  they  seem  to  have  been  misunderstood,  and  mis- 
applied in  this  case ;  it  being  clear  that  the  circuit  court  could 
make  no  decree,  as  between  the  parties  originally  before  it,  so 
as  to  do  complete  and  final  justice  between  them  without  affect- 


Sec.  2.]  Joinder  op  Parties.  247 

ing  the  rights  of  absent  persons,  and  that  the  original  bill  ought 
to  have  been  dismissed.^ 


EASTERLY  v.  BARBER. 
Court  of  Appeals  of  New  York,  1876.     66  N.  Y.  433. 

In  the  court  below  the  plaintiffs  recovered  from  the  defendant 
as  a  co-surety  one-half  of  the  amount  which  he  had  been  com- 
pelled to  pay,  on  proof  that  the  other  sureties,  who  were  not 
parties  to  the  action,  were  insolvent.^ 

MiLiiER,  J. :  *  *  *  Other  questions  arise  upon  the  defend- 
ant's  appeal,  which  should  be  considered.  It  is  claimed  that 
an  action  at  law  by  a  surety  for  contribution  must  be  against 
each  of  the  sureties  separately  for  his  proportion,  and  that  no 
more  can  be  recovered,  even  where  one  or  more  are  insolvent. 
In  the  latter  case,  the  action  must  be  in  equity  against  all  the 
co-sureties  for  contributions,  and,  upon  proof  of  the  insolvency 
of  one  or  more  of  the  sureties,  the  payment  of  the  amount  will 
be  adjudged  among  the  solvent  parties  in  due  proportion.  The 
principle  stated  is  fully  sustained  by  the  authorities.  It  is  thus 
stated,  in  Parsons  on  Contracts  (vol.  1,  page  34)  :  "At  law, 
a  surety  can  recover  from  his  co-surety  in  aliquot  part,  calcu- 
lated upon  the  whole  number,  without  reference  to  the  insol- 
vency of  others  of  the  co-sureties ;  but  in  equity  it  is  otherwise. ' ' 

1  For  the  same  reason  as  in  the  But  foreclosure  may  be  made  sub- 
principal  case,  all  persons  inter-  ject  to  prior  incumbrances,  and 
e&ted  are  necessary  to  a  will  con-  hence  the  holder  of  a  prior  mort- 
test,  Eeformed  Church  v.  Nelson,  gage  is  not  indispensable,  Hagan 
35  Ohio  St.  638;  Wells  v.  Wells,  v.  Walker,  14  Howard  29,  (1852). 
144  Mo.  198,  (1898).  In  other  cases  the  decree  would 

In  other  cases  the  decree  might  leave    the    defendant    exposed    to 

be  futile  or  unjust  unless  all  per-  double   liability   or   possible   injus- 

sons  interested  were   bound,  as  in  tice,  as  in  a  creditor's  suit  to  set 

suits     for    partition,    Cameron    v.  aside      a      fraudulent     conveyance 

Jamison,  71  Mo.  97,   (1879).  without   making   the   debtor   a   de- 

Or  in  suits  to  foreclose  a  mort-  fendant,    Chadbourne    v.    Coe,    51 

gage    without    joining    all    of    the  Fed.  479,   (1892). 

Iieirs  of  a  deceased  mortgagor,  Pil-  2  Statement   condensed   and  part 

low  V.  Sentelle,  39  Ark.  61,  (1882).  of  tlie  opinion   omitted. 


248  Pakties  to  Actions.  [Chap.  II. 

(See,  also,  Browne  v.  Lee,  6  Barn.  &  Cress,  689;  13  Eng.  C.  L. 
394;  Cowell  v.  Edwards,  2  B.  &  Pull.  268;  Beaman  v.  Blanehard, 
4  Wend.  432,  435;  Story's  Eq.  Juris.  §  496;  1  Chitty  on  Con. 
(5th  Am.  Ed.)  597,  598;  Willard's  Eq.  Juris.  108).  There 
seems  to  be  a  propriety  in  the  rule  that  where  sureties  are  called 
upon  to  contribute,  and  some  of  them  are  insolvent,  that  all 
the  parties  should  be  brought  into  court  and  a  decree  made  upon 
equitable  principles  in  reference  to  the  alleged  insolvency. 
There  should  be  a  remedy  decreed  against  the  insolvent  parties, 
which  may  be  enforced  if  they  become  afterwards  able  to  pay, 
and  this  can  only  be  done  in  a  court  of  equity  and  when  they 
are  parties  to  the  action.  The  action  here  was  not  of  this 
character;  nor  were  all  the  proper  parties  before  the  court.  It 
was  clearly  an  action  at  law,  and  in  that  point  of  view,  as  we 
have  seen,  the  plaintiff  could  only  recover  for  one-fourth  of  the 
debt  for  which  all  the  sureties  were  liable.  The  distinction 
between  the  two  classes  of  actions^  is  recognized  by  the  decisions. 
The  remedies,  the  parties  and  course  of  procedure  are  each 
different.  In  the  one,  a  jury  trial  is  a  matter  of  right;  while 
in  the  other  the  trial  is  by  the  court.  The  costs  are  also  in  the 
discretion  of  the  court.  (Code,  §§  253,  306;  13  N.  Y.  [supra], 
498).  As  the  judgment  could  not  require  each  of  the  parties 
to  pay  his  aliquot  share  and  furnish  a  remedy  over  against  those 
who  were  insolvent  and  the  rights  of  the  parties  be  finally  deter- 
mined and  fixed,  it  was  under  the  facts  proven  clearly  erro- 
neous. Although  in  many  cases  under  the  Code  the  pleadings, 
if  necessary,  may  be  made  to  conform  to  the  facts,  and  the  case 
disposed  of  upon  the  merits,  the  defects  here  are  so  radical  as  to 
strike  at  the  very  foundation  of  the  action,  and  cannot  thus  be 
remedied.  Besides,  the  proper  parties  are  not  before  us,  and 
cannot  be  brought  in,  except  on  motion  in  the  court  below.  As 
the  claim  was  alleged  in  the  complaint,  there  was  no  such  defect 
of  parties  apparent  as  required  the  defendant  to  take  the 
objection  by  demurrer  or  answer.    *    *    * 

Judgment  reversed. 

8  The    same    distinction   is   made  brought    against    each    stockholder 

in  actions  by  a  creditor  of  a  cor-  separately,     while     in     equity     all 

poration  against   a  stockholder   on  should  be  joined.    Perry  v.  Turner, 

the     latters     Uability     for     unpaid  55     Mo.    418,     (1874);     Leueke    v. 

stock.      The   legal   action   must   be  Tredway,  55  Mo.  App.  507,  (1891). 


Sec.  2.]  Joinder  of  Parties.  249 

BORDEN  V.  GILBERT. 

Supreme  Court  of  Wisconsin,  1861.     13   Wis.   670. 

By  the  Court,  Cole,  J.  This  action  was  commenced  in  No- 
vember, 1859,  to  foreclose  a  mortgage.  The  mortgage  was  given 
by  Gilbert  and  wife  to  their  co-defendant,  Jeremiah  R.  Davis, 
to  secure  the  payment  of  two  promissory  notes.  The  complaint 
states  that  the  notes  and  mortgages  were  assigned  by  Jeremiah 
R.  Davis  to  the  respondent;  and  that  the  other  defendant,  Jere- 
miah Davis,  for  a  valuable  consideration  expressed  on  the  face 
of  an  instrument  in  writing  signed  by  him,  guaranteed  the  col- 
lection of  the  notes.  There  was  no  appearance  by  any  of  the 
defendants,  and  judgment  by  default  was  rendered  for  the  sale 
of  the  mortgaged  premises,  and  also  for  a  personal  judgment 
against  the  mortgagor,  Gilbert,  the  assignor,  Jeremiah  R.,  and 
the  guarantor,  Jeremiah  Davis,  for  any  deficiency  which  might 
be  found  due  after  the  security  was  exhausted.  And  the  ques- 
tion arising  upon  the  record  is:  Could  the  guarantor  properly 
be  made  a  party  to  the  suit  for  the  foreclosure  of  the  mortgage, 
and  was  it  regular  to  render  a  personal  judgment  against  him  in 
that  action,  for  any  deficiency  which  might  be  found  due?  Or, 
should  the  respondent  first  have  exhausted  his  remedy  upon  the 
notes  and  mortgage  before  he  could  resort  to  his  action  upon  the 
guaranty?  In  the  case  of  Dunkley  v.  Van  Buren,  8  Johns.  Ch. 
R.  330,  Chancellor  Kent  stated  that  a  party,  on  a  bill  to  fore- 
close a  mortgage,  was  confined  in  his  remedy  to  the  pledge,  and 
that  such  a  suit  was  not  intended  to  act  in  personam,  and  he 
therefore  denied  an  application  to  incorporate  in  the  decree  a 
provision  that  the  mortgagor  pay  any  deficiency  found  due  by  a 
given  day,  or  that  execution  issue  against  his  other  property. 
And  it  is  very  obvious  that  if  a  bill  to  foreclose  a  m.ortgage  had 
been  understood  at  once  to  give  a  remedy  in  rem  and  in  person- 
am, the  books  would  not  abound  with  cases  where  the  question 
has  arisen  whether  a  mortgagee  could  proceed  at  law  upon  his 
bond,  at  the  same  time  that  he  was  prosecuting  his  suit  in  equity, 
or  as  to  what  would  be  the  legal  consequences  of  bringing  his 
action  at  law  after  foreclosure,  since  there  would  have  been  no 
occasion  for  any  such  discussion,  nor  any  necessity  for  any  ac- 
tion on  the  bond.  Judgment  might  have  been  given  against  the 
mortgagor  in  the  chancery  suit  at  the  same  time  that  a  decree 


17 


250  Parties  to  Actions.  [Chap.  II. 

was  rendered  for  the  sale  of  the  mortgaged  property.     It  was 
undoubtedly  to  obviate  this  difficulty,  and  to  prevent  a  multi- 
plicity of  suits,  that  the  legislature  of  New  York  provided  that 
in  a  suit  to  foreclose  a  mortgage,  the  court  should  have  the 
power  to  decree  and  direct  the  payment  by  the  mortgagor  of 
any  balance  of  the  mortgage  debt.    2  N.  Y.  R.  S.  191;  8  Paige 
480.    It  was  also  provided  that  if  the  debt  was  secured  by  the 
obligation  of  any  other  person  besides  the  mortgagor,  such  per- 
son might  be  made  a  party  to  the  suit,  and  that  the  court  might 
decree  payment  of  the  balance  of  such  debt  remaining  unsatis- 
fied, after  the  sale  of  the  mortgaged  premises,  as  well  against 
such  other  person  as  against  the  mortgagor.     Section  154.    Un- 
der this  section  it  has  been  held,  that  a  mortgagee  who  assigns 
the  mortgage  and  guarantees  the  principal  and  interest,  is  a 
proper  party  to  the  foreclosure  suit.    Bristol  v.  Morgan,  3  Edw. 
Ch.  R.  142;  Leonard  v.  Morris  et  al.,  9  Paige  90.     And  where 
the  holder  of  the  mortgage  assigned  it  and  covenanted  with  the 
assignee  that  it  was  due  and  collectible,  and  afterwards  took  a 
bond  of  a  third  person  as  security  for  the  mortgage  debt,  it  was 
held  that  the  assignee  was  in  equity  entitled  to  this  security, 
and  that  in  a  suit  by  him  to  foreclose,  the  obligor  was  properly 
joined  as  a  defendant,  in  order  that  a  decree  might  be  made 
against  him  for  any  deficiency  after  the  sale  of  the  property. 
Curtis  et  al.  v.  Tyler  et  al,  9  Paige  432.    So  when  the  purchaser 
of  a  portion  of  land  mortgaged,  assumed  the  whole  mortgage, 
it  was  decided  that  the  mortgagor  was  entitled  to  the  benefit  of 
such  agreement,  and  that  it  was  within  the  equity  of  the  statute 
to  give  a  decree  over  for  the  deficiency,  against  the  third  party 
liable  for  the  payment  of  the  mortgage  debt.     Halsey  v.  Reed, 
9  Paige  446.     See  also  Mann  v.  Cooper,   1  Barb.    (Ch.)    186; 
Stone  V.  Steinbergh,  id.  250;  Bigclow  v.  Bush,  6  Paige  343; 
Vanderkemp  v.  Shelton,  1  Clark's  Ch.  R.  321;  Luce  v.  Hines, 
id.  453. 

Whether  in  some  of  the  decisions  in  the  above  cases  the 
statute  was  not  extended  so  as  to  embrace  cases  not  fairly  com- 
ing within  its  provisions,  we  will  not  stop  to  inquire.  It  is  suf- 
ficient to  say  that  these  provisions  of  the  N.  Y.  statutes,  which 
were  substantially  incorporated  in  ch.  84,  R.  S.  1849,  have  been 
left  out  of  the  present  revision.  We  are  therefore  to  determine, 
whether,  in  the  absence  of  those  provisions,  it  is  regular  and 
proper  to  make  a  third  person  who  has  guaranteed  the  collection 


Sec.  2.]  Joinder  of  Paeties,  251 

of  the  mortgage,  a  party  to  the  suit  to  foreclose  the  mortgage. 
We  are  of  the  opinion  that  it  is  not.  The  plain,  obvious  import 
of  the  guarantor's  contract  is,  that  he  will  pay  the  debt,  pro- 
vided, on  due  diligence,  it  cannot  be  collected  out  of  tlic  mort- 
gagor, or  made  out  of  the  security.  It  is  not  an  al)solute  prom- 
ise to  pay  in  the  first  instance.  The  respondent  should  exhaust 
his  remedy  against  the  mortgagor  and  the  mortgaged  property, 
before  he  can  call  upon  the  guarantor  to  make  good  his  con- 
tract. The  former  are  the  primary  sources  to  which  he  must 
look  for  the  payment  of  his  debt.  If  they  fail  or  prove  inade- 
quate, then  the  guarantor  becomes  liable.  It  was  therefore  im- 
proper and  erroneous  to  make  the  guarantor  a  party  to  this  suit, 
and  to  take  a  personal  judgment  against  him,  under  the  allega- 
tions of  the  complaint.  The  respondent  should  first  have  ex- 
hausted his  remedy  upon  the  notes  and  mortgage,  before  pro- 
ceeding against  the  guarantor,  Jeremiah  Davis. 

The  judgment  of  the  circuit  court  must  be  reversed,  and  a 
new  trial  ordered. 


WINSLOW  V.  DOUSMAN. 
Supreme  Court  of  Wisconsin,  1864.     18  Wis.  457. 

The  complaint  in  this  action  avers  that  in  October,  1863,  the 
plaintiff  recovered  in  said  circuit  court  a  judgment  against 
George  D.  Dousman  for  $4,576.85  damages,  in  an  action  on  ex- 
press contract;  that  the  judgment  was  duly  docketed  with  the 
clerk  of  said  court  in  November  following,  and  execution  duly 
issued  thereon,  on  which  the  sheriff  made  return  of  nulla  bona; 
that  the  judgment  remained  w^iolly  unsatisfied  at  the  commence- 
ment of  this  action;  that  said  defendant  George  D,  Dousman 
had  a  considerable  amount  of  notes,  due  bills,  bonds  and  mort- 
gages, contracts,  accounts,  money,  legal  and  equitable  debts, 
claims  and  demands  due  him  from  different  persons  (whose 
names  were  to  the  plaintiff  unknown),  and  that  he  had  goods, 
chattels,  lands,  tenements,  leasehold  interests  in  real  estate,  etc., 
either  in  his  possession  or  held  in  trust  for  him,  which  plaintiff 
was  unable  to  reach  by  execution,  and  which  ought  to  be  appro- 
priated to  the  payment  of  his  judgment;  which  property  plain- 


252  Paeties  to  Actions.  [Chap.  II. 

tiff  feared  said  defendant  wonld  make  away  with  or  place  be- 
yond the  reach  of  the  court,  unless  restrained  by  injunction. 
The  complaint  further  avers  that  at  the  time  of  contracting  the 
debt  on  which  said  judgment  was  founded,  and  on  the  1st  of 
May,  1861,  said  George  D.  Dousman  was  the  owner  of  certain 
described  real  estate  in  Milwaukee  county ;  that  on  the  day  last 
mentioned,  he  conveyed  certain  specified  portion  of  said  real 
estate  to  his  son  Henry  M.  Dousman  without  any  consideration ; 
that  on  the  10th  of  the  same  month,  said  George  D.  and  his 
wife,  Martha  A.  Dousman,  conveyed  by  warranty  deed  to  said 
Henry  M.  Dousman,  certain  other  specified  parts  of  said  real 
estate,  certain  of  which  were  occupied  by  George  D.  Dousman 
and  his  wife  as  a  homestead;  that  on  the  same  day  Henry  M. 
Dousman  conveyed  the  same  property  by  warranty  deed  back  to 
said  Martha  A.  Dousman ;  that  said  conveyances  from  George  D. 
to  Henry  M.  and  from  Henry  M.  to  IMartha  A.,  were  all  with- 
out consideration,  and  were  made  in  fraud  of  the  rights  of 
plaintiff  as  creditor;  and  that  the  real  property  so  conveyed 
constituted  at  the  time  of  such  conveyance,  all  the  propertj^  of 
value  belonging  to  said  George  D.  out  of  which  plaintiff  could 
make  the  amount  of  his  judgment  aforesaid;  that  said  Henry 
]M.  and  Martha  A.  well  knew  the  fraudulent  intent  of  George 
D.  in  making  said  conveyances,  and  that  the  property  so  con- 
veyed ought  to  be  appropriated  toward  the  payment  of  plain- 
tiff's said  judgment.  Judgment  is  therefore  demanded,  that  a 
receiver  of  all  the  property  and  effects  of  George  D.  Dousman 
be  appointed  by  the  court ;  that  said  George  D.  might  be  direct- 
ed to  assign  and  transfer  to  such  receiver,  upon  oath,  under  the 
direction  of  a  master  of  the  court,  all  his  property,  equitable 
interests,  things  in  action,  money  and  effects,  and  all  the  books 
and  papers  relating  thereto,  and  the  evidences  thereof ;  that  out 
of  said  money,  etc.,  plaintiffs  might  have  satisfaction  of  said 
judgment ;  that  said  George  D.,  his  attorneys,  etc.,  might  be  en- 
joined from  collecting,  selling,  etc.,  or  in  any  manner  using, 
encumbering  or  disposing  of,  any  demands  due  him,  or  any  real 
or  personal  estate,  whether  in  his  own  possession  and  held  in 
his  own  name,  or  held  by  some  other  person  for  his  use;  that 
the  defendants  Henry  M.  and  Martha  A.  Dousman  be  restrained, 
until  the  further  order  of  the  court,  from  in  any  manner  dis- 
posing of  the  lands  conveyed  to  them  as  hereinbefore  stated; 
that  said  receiver  be  ordered  to  take  possession  of  and  to  sell 


Sec.  2.]  Joinder  of  Parties.  253 

all  the  property  of  George  D.  Dousman  (except  so  much  of  the 
real  estate  conveyed  as  above  described  as  was  occupied  by  him 
for  a  homestead),  or  so  much  thereof  as  might  be  necessary, 
and  apply  the  proceeds  to  the  payment  of  plaintiff's  said  judg- 
ment, with  the  costs  and  charges  of  this  suit,  or  that  the  con- 
veyances above  described  be  adjudged  fraudulent  and  void, 
and  the  property  be  subjected  to  sale  on  execution  to  satisfy 
said  judgment. 

The  defendant  Martha  A.  Dousman  demurred  to  the  com- 
plaint on  the  grounds  that  Henry  IM.  Dousman  was  improperly 
joined  as  defendant  therein;  that  several  causes  of  action  were 
improperly  united,  which  did  not  all  of  them  affect  all  the  par- 
ties, and  which  were  not  separately  stated;  and  that  the  facts 
stated  did  not  constitute  a  cause  of  action  against  her.  The 
demurrer  was  overruled,  and  Sciid  defendant  appealed. 

By  the  Court,  Cole,  J.  We  have  no  doul^t  that  tlie  legisla- 
ture by  the  passage  of  chapter  303,  Laws  of  1860,  intended  to 
restore  the  remedy  by  creditor's  bill  substantially  as  it  had 
existed  under  chapter  84,  R.  S.  1849.    *    *    * 

The  question  then  arises,  is  the  complaint  in  this  case  good 
under  the  old  practice?  The  principal  objection  taken  to  the 
complaint  by  the  appellant  is,  that  it  professes  to  set  out  three 
causes  of  action  of  distinct  natures,  against  three  defendants 
not  connected  in  interest.  It  is  argued  that  the  complaint  states 
one  cause  of  action  against  George  D.  Dousman,  in  the  nature 
of  a  general  creditor's  suit  under  chapter  303,  Laws  of  I860; 
another  against  George  D.  and  Henry  I\I.  Dousman,  to  have 
the  conveyance  of  lot  1,  block  19,  declared  void  as  to  creditors, 
and  subject  the  property  to  the  payment  of  the  judgment  men- 
tioned in  the  complaint;  and  a  third  against  George  D.  and 
Martha  A.  Dousman,  to  have  another  conveyance  of  other  real 
estate  likewise  declared  void  as  to  creditors,  and  subject  that 
to  the  payment  of  the  same  judgment.  The  object  of  the  suit 
then  is,  to  reach  property  which  the  judgment  debtor  George  D. 
Dousman  has  fraudulently  conveyed  to  his  son  Henry  M.,  and 
a  portion  of  which  the  latter  conveyed  to  his  mother  Martha  A., 
wife  of  George  D.,  for  the  purpose  of  placing  it  beyond  the 
reach  of  creditors.  The  claim  against  all  is  of  the  same  nature, 
that  all  the  defendants  have  combined  and  acted  in  concert  in 
these  fraudulent  transactions,  and  "all  have  a  common  inter- 
est centering  in  the  point  in  issue  in  the  cause."    So  that,  while 


254  Parties  to  Actions.  [Chap.  II. 

the  title  to  one  piece  of  property  is  in  one  defendant,  and  the 
title  to  some  other  distinct  piece  in  another  defendant,  yet  these 
■various  titles  were  taken  and  are  now  held  for  a  common  pur- 
pose, and  to  accomplish  the  same  fraudulent  end.  All  are  privy 
to  and  have  been  concerned  in  acts  tending  to  the  same  illegal 
result.  The  matters  are  not  distinct,  but  arc,  in  truth,  all  con- 
nected with  the  same  fraudulent  transaction,  in  which  all  the 
defendants  have  participated.  Where  this  is  the  relation  of  the 
defendants,  it  has  been  held  that  they  may  be  joined  in  the 
same  suit.  In  the  case  of  Fellows  v.  Fellows,  4  Cowen  682,  this 
whole  subject  in  regard  to  multifariousness  in  a  creditor's  bill 
is  most  ably  discussed,  and  the  autliorities  reviewed.  The  rule 
deduced  from  the  cases  was,  that  "where  several  persons,  al- 
though unconnected  with  each  other,  are  made  defendants,  a 
demurrer  will  not  lie  if  they  have  a  common  interest  centering 
in  the  point  in  issue  in  the  cause."  P.  700.  The  allegations  in 
this  case  bring  the  case  fully  within  the  reach  of  that  prmciple. 
Here  the  defendants  were  connected  in  the  same  purpose,  and 
have  a  common  interest  in  the  point  in  issue.  We  do  not  think 
there  is  any  improper  joinder  of  defendants,  or  of  causes  of  ac- 
tion, in  the  complaint.* 

The  order  of  the  circuit  court,  overruling  the  demurrer,  is 
affirmed. 


OLIPHINT  V.  MANSFIELD. 

Supreme  Court  of  Arkansas,  1880.    36  Ark.  191. 

Harrison,   J.^     This  was  a  suit  'in  equity,   T.   J.    Oliphint 
against  S.  Mansfield  &  Co.,  B.  Hortoii  &  Co.,  Fones  &  Bro., 

4  For    a    case    where   there   were  v.  Garifalas,  224  N.  Y.  522,  (1918), 

independent      fraudulent      convey-  where  plaintiff  was  not  permitted 

ances  to  different  persons,  see  Mul-  to     maintain     a     suit     in     equity 

lin  V.  Hewitt,  103  Mo.  639,  (1891).  against   a   defendant  who   had   ob- 

But  see  Hamlin  v.  Wright,  23  Wis.  taiuod  from  him  a  number  of  prom- 

491,  where  the  distinction  between  issory  notes,  and  some  eight  trans- 

the   two    classes   of   cases   was    ap-  ferees  of  the  notes, 

parently  overlooked.  6  Parts   of   the   opinion    omitted. 

Compare   Warnock   Uniform    Co. 


Sec.  2.]  Joinder  of  Parties.  255 

Russell  &  Newberry,  and  John  A.  Stalliugs.  The  complaint,  in 
substances,  alleged  that  Reynolds,  Jones  &  Co.,  merchants  at 
Conway,  in  Faulkner  County,  being  insolvent,  on  the  twenty- 
eights  day  of  November,  1877,  made  an  assignment,  by  deed, 
to  the  plaintiff  of  their  stock  of  goods,  and  all  their  other  prop- 
erty in  trust,  for  the  benefit  of  their  creditors  generally,  to  be 
sold  and  the  proceeds  equally  and  pro  rata  distributed  among 
them.  That  the  plaintiff  accepted  the  trust,  and  on  the  same 
day,  in  accordance  with  the  statute,  filed,  in  the  probate  clerk's 
office,  an  inventory  and  description  of  the  property,  and  ex- 
ecuted a  bond  to  the  state  in  the  penal  sum  of  $5,000. 

That  on  the  eighth  of  December,  1877,  S.  Mansfield  &  Co.  re- 
covered judgment  against  said  Reynolds,  Jones  &  Co.,  before 
a  justice  of  the  peace  of  Cadron  township,  in  said  county,  for 
$112.27;  B.  Horton  &  Co.  for  $158.26;  Fones  &  Bro.,  for  $79.43 ; 
and  Russell  &  Newberry,  for  $130.43 ;  and  on  the  tenth  of  De- 
cember, 1877,  they  sued  out  executions  on  their  respective  judg- 
ments, which  were,  on  the  same  day,  placed  in  the  hands  of  the 
defendant,  Stallings,  the  constable  of  said  tow^nship,  who  had 
levied  on  the  property  so  assigned  and  conveyed  to  the  plaintiff, 
and  was  about  to  sell  the  same. 

A  perpetual  injunction  against  the  sale  and  the  further  in- 
termeddling by  the  defendants  with  the  property,  was  prayed 
for,  A  temporary  injunction  was  granted  at  the  commence- 
ment of  the  action. 

The  defendants  demurred  to  the  complaint  for  a  misjoinder 
of  defendants,  and  because  it  did  not  state  facts  sufficient  to 
constitute  a  cause  of  action.  The  court  sustained  the  demurrer, 
but  gave  the  plaintiff  leave  to  amend  his  complaint,  which  fail- 
ing to  do,  the  temporary  injunction  was  dissolved;  the  defend- 
ants' damages  assessed  by  the  court  at  one  hundred  dollars  for 
their  counsel  fee,  for  which  a  decree  was  rendered  in  their  favor 
against  the  plaintiff,  and  the  complaint  dismissed  at  his  cost. 

The  plaintiff  appealed. 

A  misjoinder  of  defendants  is  no  ground  of  demurrer;  that 
objection  can  only  be  taken  by  motion  to  strike  out  the  names 
of  such  as  are  improperly  joined  or  sued. 

But  there  was  no  misjoinder  in  this  ease,  and  the  action  was 
properly  against  all  the  defendants. 

Any  person  may  be  made  a  defendant  who  has,  or  claims,  an 
interest  in  the  controversy  adverse  to  the  plaintiff*,  or  who  is  a 


256  Parties  to  Actions.  [Chap.  II. 

necessary  party  to  a  complete  determination  and  settlement  of 
the  question  involved.    Gantt's  Digest,  sec.  4476. 

Here  were  several  creditors  seeking  to  subject  the  goods 
claimed  by  the  plaintiff,  to  the  satisfaction  of  their  judgments, 
and  the  question  involved  in  the  controversy,  was  the  validity 
of  the  assignment  to  him,  in  which  they  had  a  common  in- 
terest.^   *    *    * 

Judgment  affirmed? 


KEYES  v.  LITTLE  YOHK  GOLD  WASHING  CO. 

Supreme  Court  of  California,  1879.    53  Cal.  724. 

By  the  court: 

The  complaint  sets  forth  that  the  plaintiff  is  the  owner  of 
certain  described  premises  knoMii  as  bottora  land,  situated  in 
the  valley,  upon  the  banks  of  Bear  River,  about  ten  miles  from 
where  that  stream  debouches  into  the  Sacramento  Valley,  and 
midway  between  that  point  and  the  mouth  of  the  river;  that 
the  defendants  are  miners  severally  engaged  in  hydraulic  min- 
ing at  points  high  up  on  Bear  River  and  its  tributaries — the 
several  mining  properties  of  the  defendants  lying  within  a  ra- 
dius of  seven  miles  upon  the  hilltops  adjacent  to  the  river,  and 
being  severally  wrought  and  carried  on  by  the  respective  de- 
fendants, and  that  the  several  dumps  used  by  the  defendants 
respectively  in  their  mining  pursuits  are  some  of  them  in  the  bed 
of  the  river,  others  in  the  beds  of  steep  ravines  and  gulches  im- 
mediately contiguous  to  and  leading  into  the  bed  of  the  river 
and  its  tributaries ;  that  the  tailings  of  the  several  mining  claims 
deposited  on  these  dumps  are  swept  down  the  river  by  the  force 
of  the  current  until  they  reach  the  lands  of  the  plaintiffs  below, 
upon  which  they  are  deposited,  and  which  they  cover  so  as  to 
destroy  the  value  of  the  said  lands.     The  prayer  is  that  an 

6  As    to    whether    the    judgment  1 1n    the    omitted    part    of    the 

creditor   is    a   necessary   party   de-  opinion  it   was   held   that   the   bill 

fendant    to    a    suit    to    enjoin    the  was    insufficient    in    failing    to    al- 

sheriff  from  levying  execution,  see  lege    that    there    were    other    cred- 

Yount  V.  Hoover,  95  Kan.  752,  L.  itors  who  had  assented  to  the  as- 

E.  A.  1915  F.  1120,  annotated  case.  sigument. 


Sec.  2.]  Joinder  of  Parties.  257 

injunction  issue  enjoining  the  defendants  from  depositing  the 
tailings  and  debris  of  their  several  mining  claims  so  that  they 
reach  the  channel  of  the  river,  etc. 

The  defendants  appeared  to  the  action,  and  filed  a  demurrer 
to  the  complaint  upon  several  grounds — and,  among  others,  upon 
the  ground  that  there  is  a  misjoinder  of  parties  defendants,  in 
that  it  did  not  appear  by  the  complaint  that  the  defendants 
jointly  committed  any  of  the  acts  complained  of,  or  are  acting 
therein  in  concert  or  by  collusion  w'ith  each  other,  but  that,  on 
the  contrary,  it  did  appear  by  the  complaint  that  the  defendants 
had  no  interest  in  common  in  the  subject  matter  of  the  suit, 
but  were  acting  severally  and  without  any  joinder  or  co-opera- 
tion on  the  part  of  the  defendants,  or  any  of  them.  The  de- 
murrer was  overruled  by  the  court  below,  and  the  propriety  of 
its  action  in  that  respect  is  brought  in  question  by  this  appeal. 

There  are,  indeed,  recitals  in  the  complaint  alleging  plaintiff 
to  have  already  sustained  damages,  but  no  relief  is  sought  upon 
them  as  allegations  constituting  the  basis  for  a  decree.  They 
are  rather  in  the  nature  of  statements  of  evidence  tending  to 
sustain  the  averments  that  like  damages  will  occur  in  the  future, 
unless  defendants  are  restrained.  In  the  case  of  a  demurrer 
for  a  misjoinder  (even  had  damages  for  past  injuries  been  de- 
manded in  this  case)  no  judgment  for  damages  could  have  been 
rendered  against  the  defendants  jointly,  because  they  are 
charged  each  to  have  committed  a  tort  severally;  and  several 
judgments  for  damages  could  not  have  been  rendered  against 
each  defendant,  in  the  same  action,  for  such  judgments  would 
have  demonstrated  a  misjoinder. 

No  damages  are  claimed  in  the  prayer  for  judgment  or  in  the 
"points"  of  counsel.  The  wrong  complained  of  is  that  each  of 
the  defendants,  acting  for  himself,  and  not  in  collusion  with  or 
combination  with  any  other,  threatens  to  continue  to  deposit  the 
tailings  from  the  workings  of  the  mine  in  such  position,  on  or 
adjacent  to  his  owti  premises,  as  that,  from  natural  causes,  they 
will  flow  down  or  be  forced  down  upon  the  plaintiff's  premises. 

If  a  nuisance  was  created  by  the  exposure  of  the  dumps  to 
the  action  of  the  waters  of  Bear  River  and  its  tributaries,  a 
nuisance  was  committed  by  each  of  defendants,  when  he — dis- 
connected from  the  others — made  or  threatened  such  deposit; 
or,  if  it  be  said  that  the  matter  of  the  reasonable  use  of  the 
stream  can  enter  into  the  inquiry,  there  could  be  no  nuisance  by 


258  Parties  to  Actions.  [Chap.  II. 

any  of  the  defendants  who  had  made  only  a  reasonable  use. 

In  either  view  of  the  case,  there  is  a  misjoinder  of  parties  de- 
fendant. The  bare  statement  would  seem  to  prove  the  proposi- 
tion, since  the  very  essence  of  the  objection  of  a  misjoinder  of 
a  defendant  with  others  is  that  he  is  not  connected  with  or 
affected  by  the  single  cause  of  action,  if  there  is  but  one,  or  that 
he  is  not  connected  with  or  affected  by  one  or  more  of  several 
separate  and  distinct  causes  of  action,  if  several  are  alleged. 
If  any  one  of  these  defendants  was  liable  to  be  enjoined,  he 
could  have  been  enjoined  in  a  separate  suit,  the  subject  matter 
of  such  suit  being  the  alleged  threatened  wrong.  If  anyone  of 
the  defendants  is  not  liable  to  be  enjoined  in  a  separate  suit, 
he  cannot  be  made  liable  in  an  action  like  the  present ;  for  there 
is  no  principle  of  equity  which  would  make  a  man  responsible 
for  a  wrong  which  he  has  neither  done  nor  threatened,  merely 
by  joining  him  with  other  defendants  who  may  independently 
have  threatened  a  similar  wrong. 

Several  cases  were  cited  by  the  counsel  for  respondent  which 
it  was  claimed  would  sustain  the  joinder  of  the  defendants  in 
this  action,  but  an  examination  wall  clearly  distinguish  them 
from  the  present.  Mayor  of  York  v.  Pilkington,  1  Atk.  282, 
was  a  bill  of  peace  to  prevent  a  multiplicity  of  suits.  In  a  cer- 
tain sense,  all  bills  of  peace  are  intended  to  prevent  multiplicity 
of  suits,  but  it  is  a  non  sequitur  to  assert  that  wherever  the  re- 
sult of  assumed  jurisdiction  by  a  court  of  equity  will  relieve  the 
plaintiff  of  the  inconvenience  of  bringing  several  separate  ac- 
tions at  law  or  suits  in  equity,  the  complaint  is  to  be  termed  a 
bill  of  peace.  In  Mayor  v.  Pilkington,  a  bill  was  brought  to 
quiet  the  plaintiffs  in  a  right  of  fishery  in  the  River  Ouse,  of 
which  they  claimed  the  sole  fishery  "of  a  large  tract"  against 
the  defendants,  who,  it  was  suggested  by  the  bill,  claimed  several 
rights,  either  as  lords  of  manors  or  occupiers  of  adjacent  lands. 
The  main  question  was  whether,  in  view  of  the  fact  that  there 
was  no  privity  between  the  defendants,  the  bill  could  be  main- 
tained. Holding  the  affirmative  on  this  proposition,  the  court 
of  chancery  was  authorized  to  retain  the  cause  for  other  pur- 
poses. But  the  gravamen  of  the  bill  was  not  that  the  defendants 
were  several  and  separate  trespassers  (the  view  upon  which  the 
demurrer  was  sustained  at  the  first  argument,)  but  was  that  the 
plaintiff  had  an  exclusive  right  against  which  defendants  were 
asserting  adverse  rights.     The  proceeding  was  analogous  to  our 


Sec.  2.]  Joinder  of  Parties.  25 Ji 

action  to  quiet  title.  The  present  case  mure  resembles  Dilley  v. 
Doig,  2  Vesey,  Jr.  ,486,  in  which  the  proprietor  of  a  copyright 
sought  to  restrain  in  the  same  suit  several  and  independent  in- 
fringements of  his  right  by  different  persons.  In  that  ease  there 
was  no  allegation  in  the  bill  of  a  claim  of  right  on  the  part  of 
the  defendants  to  sell  copies  of  the  spurious  edition  of  the  book, 
and,  from  the  nature  of  the  circumstances  detailed,  there  could 
have  been  no  such  allegations.  The  defendants  were  alleged  to 
be  severally  wrongdoers  without  any  combination.  The  Lord 
Chancellor  said:  "The  right  against  the  different  booksellers  is 
not  joint,  but  perfectly  distinct;  there  is  no  privity."  The  sub- 
ject matter  of  the  bill  was  a  w^rong  done  by  each  of  the  book- 
sellers; its  object  was  not  to  obtain  a  final  determination  that 
the  plaintiff  had  the  exclusive  right,  and  that  the  defendants 
had  no  right  (for  it  was  not  asserted  that  they  claimed  any) 
but,  as  in  the  present  case,  simply  to  enjoin  wrongs  threatened 
by  the  defendants  severally,  and  not  jointly."  In  Whaley  v. 
Dawson,  2  Shoales  &  L.  367,  a  demurrer  was  sustained,  "for 
that  it  appeared  by  said  bill  that  the  same  was  exhibited  against 
the  defendants  and  one  Michael  Carraher  for  several  and  dis- 
tinct causes  and  matters,  that  have  no  relation  or  dependencies 
on  each  other."  In  Brinkerhoff  v.  Brown,  6  Johns.  Ch.  137, 
Chancellor  Kent  remarks:  "There  was  a  series  of  acts  on  the 
part  of  the  persons  concerned  in  the  'Genesee  Company,'  all 
produced  ly  the  same  fraudulent  intent,  and  terminating  in 
the  deception  and  injury  of  the  plaintiff.  The  defendants 
performed  different  parts  in  the  same  drama;  but  it  was  still 
one  piece — one  entire  performance,  marked  by  different  scenes." 
*  *  *  It  is  claimed  that  New  York  &  New  Haven  Railroad 
Company  v.  Schuyler,  17  N.  Y.  603  (34  N.  Y.  45),  is  strongly  in 
point.  But  that  was  a  case  where  the  plaintiffs  clahned  a  right 
to  have  certain  stock  canceled  as  having  been  fraudulently  is- 
sued, and  the  defendants,  as  the  complaint  alleged,  "all  claimed 
rights;  *  *  *  all  asserted  a  claim  upon  the  company  in 
some  form."  (17  N.  Y.  594-595.)  The  case  was  determined 
upon  its  analogies  to  a  bill  to  quiet  title  and  to  remove  a  cloud. 
The  learned  judge  likened  it  to  a  case  of  an  individual  clothed 
with  the  legal  title  to  the  railroad  property,  receiving  its  gross 
earnings  for  the  purpose  of  dividing  the  net  profits  among  a 
large  number  of  individuals  whose  rights  were  evidenced  by 
certificates  of  stock.    In  such  a  case,  if  a  new  class  should  come 


260  Parties  to  Actions.  [Chap.  II. 

forward  claiming  tlie  same  rights,  and  presenting  instruments 
of  the  same  kind  as  the  certificates,  bearing  on  their  face  all 
the  evidences  of  genuineness,  but  in  fact  unauthorized  and  spu- 
rious, it  would  be  the  right  and  duty  of  the  legal  owner  (upon 
settled  principles  of  equity)  to  call  the  false  claimants  into 
Court,  in  order  to  remove  the  cloud  upon  the  equitable  interests 
of  those  whom  he  represented.     (Ibid.  598.) 

It  is  unnecessary  to  dwell  upon  the  analogies  between  the 
cases  of  N.  Y.  &  N.  H.  R.  R.  Co.  v.  Schuyler,  and  the  Mayor 
of  York  V.  Pilkington,  or  on  the  very  marked  differences  be- 
tween the  former  and  the  case  at  bar.  In  the  court  of  appeals, 
34  N.  Y.,  the  complaint  was  expressly  characterized  as  ''a  bill  of 
peace,  to  quiet  titles,  settle  rights,  and  prevent  a  multiplicity  of 
suits."  An  examination  of  Thorpe  v.  Brumfit,  Law  R.  Ch.  App. 
Cases,  vol.  8,  shows  that  the  parties  all  had  a  contract  relation 
with  each  other,  by  reference  to  which  their  respective  rights 
were  to  be  determined ;  and  further,  that  no  question  of  joinder 
was  raised,  but,  on  the  contrary,  the  defendant's  all  answered 
together,  insisting  that  they  all  had  a  certain  right  of  way,  to 
be' exercised  in  a  reasonable  and  proper  manner  (p.  653).  In 
People  V.  Morrill,  26  Cal.,  the  objection  was  that  there  was  a 
misjoinder  of  plaintiffs.  It  was  held  (and  apparently  admitted) 
that  all  the  plaintiffs  were  properly  joined,  so  far  as  relief  by 
cancellation  of  the  patent  was  concerned,  and  it  was  said  that 
the  demurrer  should  be  overruled  because  too  general. 

We  think  the  distinction  between  the  case  at  bar  and  the  other 
American  cases  cited  by  the  respondent — Gaines  v.  Chew,  2 
How.  619,  amongst  them — is  equally  susceptible  of  explanation. 
With  respect  to  the  Scotch  cases,  it  is  enough  to  say  that,  under 
the  system  of  law  which  obtains  in  Scotland,  it  would  appear 
that  parties  and  causes  of  action  may  be  united  in  a  manner 
not  permissible  in  countries  where  the  common  law  prevails ;  the 
inconveniences  and  evils  resulting  from  the  joinder  of  parties 
without  community  of  interest  being  there  avoided  by  a  system 
which  allows  the  ''conjunction"  of  causes  and  the  submission 
of  special  issues  to  the  triers  of  fact. 

At  law,  where  an  action  for  tort  is  brought  against  several  co- 
defendants,  it  is  essential  that  the  wrong  complained  of  be  joint. 
(Dicey  on  Parties  449.)     This  rule  is  thoroughly  understood, 


Sec.  2.]  Joinder  of  Parties.  261 

and  is  not  disputed.  If  there  are  any  exceptions  in  equity*  they 
have  not  been  called  to  our  attention.  We  are  convinced  that 
none  can  be  found  which  will  authorize  the  joinder  of  defend- 
ants attempted  in  the  proceeding  before  us.  We  have  no  doubt 
that  the  objections  to  the  complaint  above  considered  could 
properly  be  presented  by  a  demurrer  on  the  ground  of  mis- 
joinder of  parties  defendant. 

Judgment  and  order  reversed  and  cause  remanded,  with  di- 
rections to  the  court  below  to  sustain  the  demurrer  to  the  com- 
plaint.    Remittitur  forthwith. 


HILLMAN  v^  NEWINGTON. 

Supreme  Court  of  California,  1880.    57  Cat.  56. 

Sharpstein,  J.     The  respondent  Hillman  brought  an  action 
against  eight  defendants,  the  appellants  herein,  and  alleged  that 
he  was  entitled,  by  virtue  of  a  prior  appropriation,  to  1,600 
inches  of  the  water  flowing  in  a  stream  known  as  Willow  Creek, 
and  that  the  appellants  diverted  the  waters  of  said  creek  from 
the  natural  channel  thereof,  so  as  to  prevent  them  from  flowing 
into  the  plaintiff's  ditches,  and  thereby  deprived  him  of  the 
water  to  which  he  was  entitled.     He  further  alleged,  that  the 
defendants  threatened,  and  intended  unless  restrained  by  an 
order  of  the  court,  to  continue  said  diversion  and  deprivation, 
and  prayed  that  they  be  enjoined  from  so  doing.     There  are 
other  allegations  of  damages,  and  a  demand  of  judgment  there- 
for.    Most   of  the   material   allegations   of  the   complaint   are 
specifically  denied  by  the  defendants.     They  first  "deny  that 
they  have  any  joint  interest  in  the  subject  matter  of  this  ac- 
tion, or  that  they  have  jointly  done  any  act  or  thing  mentioned 
in  the  complaint ;  or  that  they  are  jointly  liable  to  the  plaintiff 
in  any  matter  or  thing  connected  with  or  growing  out  of  the 
subject  matter  of  the  action,  either  of  the  matters  or  things 

8  See   Miller   v.    Highland   Ditch  dealing   with    the    liability    of   the 

Co.,   87   Cal.  430,    (1891),   allowing  defendants    for    damages    are    col- 

an  injunction  in  a  somewhat  sim-  lected    in    Day    v.   Louisville    Coal 

ilar    case,    but    refusing    to    award  Co.,    10    L.    R.    A.     (N,    S.)     167, 

damages.     A  number  of  the  cases  (1906),  annotated. 


262  Parties  to  Actions.  [Chap.  II. 

mentioned  or  set  out  in  the  complaint,  or  of  the  matters  here- 
after mentioned  and  set  out  in  this  answer. ' ' 

"And  the  defendants  aver,  that  their  rights  and  interests  in 
all  matters  connected  with  the  subject  matter  of  this  action  are 
separate  and  independent  of  each  other,  and  that  for  these  rea- 
sons they  are  improperly  joined  as  defendants  in  this  action." 

Afterwards  they  allege,  that  each  of  the  defendants  is  the 
owner  and  in  the  actual  possession  of  a  separate  and  distinct 
tract  of  land;  and  that  each  of  them  has,  without  any  connec- 
tion with  any  other,  diverted  a  distinct  and  separate  part  of  the 
water  of  said  creek  for  his  individual  use.  In  other  words,  that 
they  have  acted  severally  and  not  jointly,  in  the  premises. 

The  court  found,  that  the  right  of  the  plaintiff  to  400  inches 
of  the  waters  of  said  creek,  measured  under  a  four  inch  pressure, 
were  prior  and  paramount  to  the  rights  of  the  defendants,  or 
any  of  them,  in  said  waters;  and  that  the  defendants  had  sev- 
erally, and  not  in  concert,  diverted  said  waters  to  such  an  extent 
that  said  400  inches  "did  not  pass  down  to  the  heads  of  plain- 
tiff's ditches."  The  judgment  of  the  court  is,  that  the  defend- 
ants be  perpetually  enjoined  from  "diverting  said  waters,  or 
any  part  of  them,  from  their  natural  channel,  during  the  months 
of  April,  May  and  June  of  each  year,  to  such  an  extent  as  that 
400  inches  of  water,  measured  under  a  four-inch  pressure,  shall 
not  pass  down  the  channel  of  Willow  Creek  below  the  head  of 
the  defendant  Newington's  ditch  and  to  the  head  of  the  plain- 
tiff's upper  ditch;"  and  that  the  plaintiff  recover  of  the  defend- 
ants $1  damages,  and  the  costs  of  suit,  taxed  at  $787.91;  and 
that  as  between  the  defendants,  the  costs  and  damages  should  be 
apportioned.    From  that  judgment,  the  defendants  appeal. 

The  point  most  strongly  pressed  upon  our  attention  by  ap- 
pellant's counsel  is,  that  there  is  a  misjoinder  of  parties  defend- 
ant, because  they  did  not  act  jointly  or  in  concert  in  diverting 
the  plaintiff's  water.  It  does  appear,  however,  that  the  plaintiff 
is  entitled  to  a  certain  quantity  of  water,  of  which  he  is  de- 
prived by  the  defendants.  None  of  them  have  a  right  to  use  any 
of  the  water  of  Willow  Creek,  unless  there  is  more  than  four 
hundred  inches  flowing  in  it.  If  there  be  more  than  the  amount 
flowing  in  it  at  any  time,  the  plaintiff  has  no  interest  in  the 
surplus.  What  the  respective  rights  of  the  defendants  may  be 
in  it  in  no  way  concerns  him. 

It  is  not  at  all  improbable  that  no  one  of  the  defendants  de- 


Sec.  2.]  Joinder  of  Parties.  263 

prives  the  plaintiff  of  the  amount  to  which  he  is  entitled.  If 
not,  upon  what  ground  could  he  maintain  an  action  against  any 
one  of  them  ?  If  he  were  entitled  to  all  the  water  of  the  creek, 
then  every  person  who  diverted  any  of  it  would  be  liable  to  him  in 
an  action.  But  he  is  only  entitled  to  a  certain  specific  amount 
of  it,  and  if  it  is  only  by  the  joint  action  of  the  defendants 
that  he  is  deprived  of  that  amount,  it  seems  to  us,  that  the 
wrong  is  committed  by  them  jointly,  because  no  one  of  them 
alone  is  guilty  of  any  wrong.  Each  of  them  diverts  some  of  the 
water.  And  the  aggregate  reduces  the  volume  below  the  amount 
to  which  the  plaintiff  is  entitled,  although  the  amount  diverted 
by  anyone  would  not.  It  is  quite  evident,  therefore,  that  with- 
out unity  or  concert  of  action,  no  wrong  could  be  committed ; 
and  we  think  that  in  such  a  case,  all  who  act  must  be  held  to 
act  jointly. 

If  there  be  a  surplus,  the  defendants  can  settle  the  priority 
of  right  to  it  among  themselves.  That  can  in  no  way  affect  the 
plaintiff's  right  to  the  amount  to  which  he  is  entitled.  It  does 
not  seem  to  us  that  the  defendant's  answer,  that  each  one  of 
them  is  acting  independently  of  every  other  one,  sho\^s  that 
the  wrong  complained  of  is  not  the  result  of  their  joint  action ; 
and  if  it  does  not,  the  answer  in  that  respect  is  insufficient  to 
constitute  a  defense.  The  case,  so  far  as  we  are  advised,  is  siii 
generis.  No  parallel  case  is  cited  by  either  side.  The  objection 
that  the  judgment  does  not  apportion  the  payment  of  the  dam- 
ages and  costs  equally  between  the  defendants,  can  be  obviated 
by  a  modification  of  the  judgment  in  that  respect.  And  it  is 
ordered  that  it  be  so  modified;  and  with  that  modification  it  is 
affirmed. 

Judgment  affirmed. 


STATE  EX  REL.  v.  DEAEING. 

Supreme  Court  of  Missouri,  1912.    244  Mo.  25. 

Graves,  J.  Relator  seeks  to  have  respondent,  as  judge  of  the 
circuit  court  of  Jefferson  county,  prohibited  from  further  pro- 
ceeding in  a  case  wherein  one  Steinmetz  is  plaintiff  and  this 
relator  and  some  four  other  mining  companies  are  defendants. 


264  Parties  to  Actions.  [Chap.  II. 

Steinmetz,  who  is  the  owner  of  land  or  lands  bordering  upon 
Big  river,  sues  to  enjoin  relator  and  the  other  defendants  from 
polluting  the  waters  of  such  running  stream,  which  is  alleged 
they  do  by  discharging  into  said  stream  certain  named  sub- 
stances from  their  mines  and  mills,  all  to  the  irreparable  damnge 
of  said  plaintiff  and  his  lands,  as  well  as  to  divers  other  persons 
and  their  lands.  The  details  of  this  petition  are  immaterial, 
but  such  is  the  general  purport.  The  relator  is  a  nonresident 
corporation,  but  licensed  to  do  business  in  this  state.  In  due 
time  the  relator  herein  petitioned  the  said  circuit  court  for  a 
removal  of  said  cause  to  the  District  Court  of  the  United  States 
for  the  Eastern  Division  of  the  Eastern  District  of  Missouri, 
on  the  ground  that  plaintiff's  petition  stated  a  separable  con- 
troversy wholly  between  said  plaintiff  in  that  suit  and  this  re- 
lator as  defendant  in  that  suit,  which  could  be  separately  and 
wholly  determined  as  between  the  two  parties  aforesaid,  one  of 
which  parties  the  plaintiff  was  a  citizen  of  Missouri,  and  the 
other,  this  relator,  a  citizen  of  Delaware. 

I.  Respondent  refused  to  grant  and  make  an  order  of  re- 
moval in  compliance  with  the  prayer  of  relator's  petition  there- 
for.   *    *    * 

The  return  admits  many  of  the  charges  in  relator's  petition 
and  specifically  answers  as  to  others.  The  further  facts  can  be 
stated  best  with  the  discussion  of  the  points  made,  which  are 
as  above  indicated.     *     *     * 

Nor  do  we  think  there  is  substance  in  the  contention  that  the 
petition  shows  upon  its  face  that  the  action  in  the  circuit  court 
is  necessarily  a  separable  controversy  between  citizens  of  dif- 
ferent states.  It  must  not  be  overlooked  that  this  is  not  an  ac- 
tion for  damages,  but  an  injunctive  action  to  abate  a  nuisance 
and  to  restore  the  stream  to  its  natural  condition.  It  does  ap- 
pear from  the  petition  that  whatever  was  done  by  the  several 
defendants  toward  polluting  the  stream  was  done  independently. 
In  other  words,  each  defendant  has  its  own  separate  milling 
plant,  and  the  refuse  from  them  is  placed  into  the  stream  by 
the  several  defendants  in  the  ordinary  and  usual  manner  of 
doing  their  respective  work.  One  defendant  had  nothing  to  do 
with  the  work  and  doings  of  the  other.  But,  on  the  other  hand, 
the  petition  charges  that  the  combined  wrongful  doings  of  all 
defendants  has  produced  the  present  condition  of  the  river,  and 
has  therefore  produced  the  nuisance  sought  to  be  abated. 


Sec.  2.]  Joinder  op  Parties.  2G5 

To  our  mind  counsel  for  respondent  well  states  the  law  as  to 
what  is  a  separable  controversy  under  the  laws  of  the  United 
States,  when  they  say:  "The  rule  as  to  joint  liability,  in  an 
action  for  damages  caused  by  the  pollution  of  a  stream  by  sep- 
arate acts  of  different  parties,  is  entirely  different  from  an  ac- 
tion, as  in  this  case,  by  injunction  to  restrain  all  parties  who  by 
their  separate  acts  pollute  a  stream  and  create  a  nuisance. 
There  is  a  distinction  between  suits  for  injunction  and  actions 
for  damages  in  regard  to  the  joinder  of  parties  contributing 
toward  an  injury. ' ' 

There  is  a  marked  distinction  between  actions  in  equity  and 
actions  at  law  in  cases  of  this  character.  If  the  plaintiff  Stein- 
metz  had  sued  these  five  defendants  for  damages  resulting  to 
his  property  by  reason  of  their  alleged  separate  acts,  the  cause 
of  action  stated  would  be  a  separable  cause  of  action,  because 
each  defendant  would  only  be  liable  for  such  proportionate  part 
of  the  whole  damage  as  it  had  done  by  reason  of  its  individual 
wrongful  act.  Better  stated,  each  defendant  would  only  be  li- 
able to  plaintiff  for  such  damage  as  its  individual  wrongful  acts 
had  occasioned. 

But  in  equity  where  the  purpose  of  the  action  is  to  abate  the 
nuisance  which  produces  the  injury,  and  thereby  restore  the 
stream,  the  rule  as  to  joinder  of  parties  is  different.  In  such 
cases  each  party  contributing  in  any  way  to  produce  the  pollu- 
tion of  the  stream  is  a  proper  party  defendant,  and  no  separable 
cause  of  action  stated. 

In  a  note  to  the  case  of  Warren  v.  Parkhurst,  6  L.  R.  A. 
(N.  S.)  1149,  the  learned  annotator  has  clearly  dra^\^l  the  dis- 
tinction in  this  language :  "The  opinion  in  the  above  case  brings 
out  very  clearly  the  distinction  between  suits  for  injunction  and 
those  for  damages,  with  respect  as  to  the  joinder  of  parties  con- 
tributing toward  an  injury,  and  the  cases  directly  in  point  are 
fully  set  out  in  the  opinion.  The  case  in  which  a  joint  recovery 
of  damages  for  the  pollution  was  denied,  however,  deserve  a 
little  notice  by  way  of  emphasis.  In  Martinowsky  v.  Plannibal, 
35  Mo.  App.  70,  it  was  held  that  persons  who  deposit  filth  in  a 
stream  at  different  points  cannot  be  made  joint  defendants  in 
a  suit  for  damages,  but  each  must  be  sued  separately,  and  re- 
covery can  be  had  against  him  for  only  his  proportion  of  the 
total  injury.  So,  persons  who,  independently  and  without  co- 
operation or  concert  of  action,  turn  surface  water  into  a  drain 


266  Parties  to  Actions.  [Chap.  IT. 

to  the  injury  of  a  lower  proprietor,  cannot  be  made  jointly  li- 
able as  joint  tort-feasors.  Bonte  v.  Postel,  109  Ky.  64,  58  S.  W. 
536,  51  L.  R.  A.  187.  So.  owners  of  property,  who  petition  a 
city  for  the  construction  of  a  sewer  and  agree  to  use  it,  are  not 
jointly  liable  with  the  city  for  damages  caused  by  unskillful  and 
negligent  construction  of  the  sewer,  so  that  it  pollutes  a  water 
course  to  the  injury  of  a  lower  riparian  owner.  Carmichael  v. 
Texarkana,  54  C.  C.  A.  179,  116  Fed.  845,  58  L.  R.  A.  911,  af- 
firming (C.  C.)  94  Fed.  561.  And  a  similar  result  was  reached, 
although  upon  different  grounds,  in  Thompson  v.  Reasoner,  122 
Ind.  454,  24  N.  E.  223,  7  L.  R.  A.  495.  The  ground  of  the  dis- 
tinction betw^een  the  two  classes  of  actions  is  that  in  the  injunc- 
tion suit  the  object  is  to  do  away  \dth  the  nuisance  and  restore 
the  stream  to  its  ancient  purity.  To  accomplish  this,  all  that 
is  necessary  is  to  require  the  person  contributing  to  the  injury 
to  refrain  therefrom.  This  can  be  done  in  one  action,  and  it  is 
unnecessary  to  maintain  separate  actions  against  each  contribut- 
ing party.  On  the  other  hand,  as  shown  in  2  Farnham,  Waters, 
1716,  a  person  polluting  a  water  course  is  liable  in  damage  only 
for  his  own  act,  and  not  for  that  of  any  others  who  may  con- 
tribute to  the  injury.  If  others  have  contributed,  his  deposit 
must  be  separated  by  means  of  the  best  proof  the  nature  of  the 
case  affords,  and  his  liability  ascertained  accordingly.  Seely 
V.  Alden,  61  Pa.  302,  100  Am.  Dec.  642;  Chipman  v.  Palmer, 
77  N.  Y.  51,  33  Am.  Rep.  566,  affirming  9  Hun  517.  This  sep- 
aration can  be  accomplished  without  a  confusion  of  issues  only 
by  an  action  in  which  the  individual  is  the  sole  defendant. 
Therefore  such  action  must  be  brought  against  individuals,  and 
not  against  the  several  defendants  jointly."    *    *     * 

It  may  be  that  the  plaintiff  Steinmetz  could  have  brought 
separate  actions  in  equity  against  each  of  these  defendants,  but 
this  would  not  change  the  rule.  Such  would  not  have  been  the 
better  practice. 

In  Moon  on  the  Removal  of  Causes,  §  142,  p.  402,  it  is  said : 
"There  are  many  causes  of  action  which  are,  in  their  nature, 
joint  and  several.  A  plaintiff  may  sue  all  the  parties  liable,  or 
sue  any  one  or  more  of  them,  at  his  election.  "Where  the  plain- 
tiff has  a  right  under  the  law  to  sue  defendants  jointly,  the  de- 
fendants cannot  obtain  an  advantage  from  the  fact  that  he  also 
had  a  right  to  sue  them  separately.  If  a  plaintiff  sues  two  or 
more  persons  jointly  in  such  a  case,  the  fact  that  the  plaintiff 


Sec.  2.]  Joinder  of  Parties.  267 

might  have  brought  several  actions  against  each  defendant,  in- 
stead of  one  action  against  them  all,  docs  not  make  the  suit 
embrace  separable  controversies.  This  rule  applies  to  actions 
upon  joint  and  several  contracts.  It  applies  as  well  to  actions 
in  tort,  which  are,  in  their  nature,  joint  and  several."  The 
italics  are  ours.  So  that  if  it  be  granted  that  Steinmetz  could 
have  instituted  separate  equity  suits,  yet  if  he  had  the  right  to 
join  the  defendants,  as  we  think  he  did,  such  defendants  gain 
no  advantage  as  to  the  question  of  removal,  simply  because  of 
the  fact  that  plaintiff  could  have  sued  them  in  equity  either 
singly  or  jointly. 

The  cases  cited  and  relied  upon  by  counsel  for  relator  are 
largely  actions  at  law  for  damages,^  and  it  is  well  settled  in 
this  state,  as  elsewhere,  that  in  such  case  the  defendants  should 
not  be  joined,  and  if  the  petition  shows  upon  its  face  "that  the 
damages  were  done  by  the  defendants  acting  independently  and 
separately,  and  if  one  of  them  is  a  citizen  of  another  state,  then 
there  is  a  separable  cause  of  action,  which  is  removable  to  the 
proper  federal  court.  But  those  cases  are  not  in  point  in  this 
case. 

Respondent  was  not  in  error  when  he  refused  to  remove  the 
cause.  The  jurisdiction  of  the  cause  is  properly  in  respondent's 
court.  Our  preliminary  rule  in  prohibition  will  therefore  be 
quashed,  and  the  writ  of  prohibition  refused.     All  concur. 

9  That  in  such  eases  there  is  no  575  (Mo.  1920).  William  Tacka- 
joint  liability  for  damages,  .  see  berry  Co.  v.  Sioux  City  Service 
Benson    v.    St.    Louis,    219    S.    W.      Co.,  40  L.  E.  A.  (N.  S.)  102,  (1911), 


CHAPTER  III. 
THE  COMPLAINT. 

Code  op  Civil  Procedure  of  New  York. 

§  478.     "The  first  pleading,  on  the  part  of  the  plaintiff,  is 
the  complaint." 

§481.^     The  complaint  must  contain : 

"1.     The  title  of  the  action,  specifying  the  name  of  the  court 


1  This  section  appears  in  sub- 
stance in  all  of  the  Codes,  in  much 
t?ie  same  language.  In  a  number 
01"  them,  however,  the  subdivision 
dealing  with  the  demand  for  judg- 
ment contains  a  provision  to  the 
effect  that  if  money  or  damages 
be  demanded  the  amount  must  be 
stated. 

For  the  exact  wording  see: 
Alaska  Code,  1900,  §  57;  Ari 
zona,  R.  S.,  1913,  §  425;  Arkansas 
Dig.  Stat.,  1921,  §  1187;  California 
Code  Civ.  Proc,  1915,  §  426;  Con 
necticut,  G.  S.,  1918,  §  5G30;  Idaho 
Comp.  Stat.,  1919,  §  6087;  Indiana 
Burn's  Ann.,  Stat.,  1914,  §  343 
Iowa,  Comp.  Code,  1919,  §  7191 
Kansas,  Gen.  Stat.,  1915,  §  6983 
Kentucky,  Eev.  Code,  1900,  §  90 
(differs  from  N.  Y.  on  demand  for 
judgment).  Minnesota,  G.  S. 
1913,  §  7753;  Missouri,  E.  S.,  1919 
§  1220;  Montana,  Rev.  Code,  1907 
§  6532;  Nebraska,  Ann.  Stat.,  1911 
§  1095;  Nevada,  Rev.  Laws,  1912 
§  5038;  New  Mexico,  Ann.  Stat. 
1915,  §  4104;  New  York,  Civ.  Prac 
Act,  1920,  §  255:     "The  complaint 


must  contain:  1.  The  title  of  the 
action,  specifying  the  name  of  the 
court  in  which  it  is  brouglit;  if 
it  is  brought  in  the  supreme  court, 
the  name  of  the  county  which  the 
plaintiff  designates  as  the  place  of 
trial;  and  the  names  of  all  the 
parties  to  the  action,  plaintiff  and 
defendant.  2.  A  statement  of  each 
cause  of  action.  3.  A  demand  of 
the  judgment  to  which  the  plain- 
tiff supposes  himself  entitled." 
North     CaroUna,     Consol.     Stat., 

1919,  §  506;  North  Dakota,  Comp. 
Laws,  1913,  §  7440;  Ohio,  Gen. 
Code,  1921,  §  11305;  Oklahoma, 
Rev.  Laws,  1910,  §  4737;  Oregon, 
Comp.  Laws,  1920,  §  67;  South 
Carolina,  Code,  1912,  §  192;  South 
Dakota,  Rev.  Code,  1919,  §  2346; 
ITtah,  Comp.  Laws,  1917,  §  6566; 
Washington,  Rem.  &  Bal.  Code, 
1910,  §  258;  Wisconsin,  Stat.,  1919, 
§     2645;     Wyoming,     Comp.     Stat., 

1920,  §  5649;  U.  S.  Equity  Rules, 
1912,  No.  25:  "Hereafter  it  shall 
be  sufficient  that  a  bill  in  equity 
shall  contain,  in  addition  to  the 
usual   caption: 


(268) 


Sec.  1.]   Facts  Constituting  the  Cause  of  Action. 


269 


in  which  it  is  brought ;  if  it  is  brought  in  the  supreme  court, 
the  name  of  the  county,  which  the  plaintiff  designates  as  the 
place  of  trial;  and  the  names  of  all  the  parties  to  the  action, 
plaintiff  and  defendant. 

"2.  A  plain  and  concise  statement  of  the  facts,  constituting 
each  cause  of  action,  without  unnecessary  repetition. 

''3.  A  demand  of  the  judgment*  to  which  the  plaintiff  sup- 
poses himself  entitled." 

§  482.  In  an  action  triable  by  the  court,  without  a  jury, 
the  plaintiff  may,  in  a  proper  case,  demand  an  interlocutory 
judgment,  and  also  a  final  judgment,  distinguishing  them 
clearly. 

§  483.  "Where  the  complaint  sets  forth  two  or  more  causes 
of  action,  the  statement  of  the  facts  constituting  each  cause  of 
action  must  be  separate  and  numbered." 

§  484.^     ' '  The  plaintiff  may  unite  in  the  same  complaint,  two 


First,  the  full  name,  when 
known,  of  each  plaintiff  and  de- 
fendant, and  the  citizenship  and 
residence  of  each  party.  If  any 
party  be  under  any  disability  that 
fact  shall  be  stated. 

Second,  a  short  and  plain  state- 
ment of  the  grounds  upon  which 
the  court's  jurisdiction  depends. 

Third,  a  short  and  simple  state- 
ment of  the  ultimate  facts  upon 
which  the  plaintiff  asks  relief, 
omitting  any  mere  statement  of 
evidence. 

Fourth,  if  there  are  persons 
other  than  those  named  as  defend- 
ants who  appear  to  be  proper  par- 
ties, the  bill  should  state  why 
they  are  not  made  parties  as  that 
they  are  not  within  the  jurisdic- 
tion of  the  court,  or  cannot  be 
made  parties  without  ousting  the 
jurisdiction. 

Fifth,  a  statement  of  and  prayer 
for  any  special  relief  pending  the 
suit  or  on  final  hearing,  which 
may  be  stated  and  sought  in  al- 
ternative forms.  If  special  relief 
pending    the    suit    be    desired    the 


bill  should  be  verified  by  the  oath 
of  the  plaintiff,  or  someone  hav- 
ing knowledge  of  the  facts  upon 
which  such  relief  is  asked." 

2  Where  there  is  no  answer,  the 
judgment  shall  not  be  more  favor- 
able to  the  plaintiff,  than  that  de- 
manded in  the  complaint.  Where 
there  is  an  answer,  the  court  may 
permit  the  plaintiff  to  take  any 
judgment,  consistent  with  the  case 
made  by  the  complaint,  and  em- 
braced within  the  issue.  N.  Y. 
Code   Civ.  Proc.  §   1207. 

3  There  is  a  good  deal  of  vari- 
ation in  the  corresponding  sec- 
tions of  the  several  codes;  few,  if 
any,  adopt  precisely  the  same  sub- 
divisions found  in  the  New  York 
Code,  and  a  number  omit  entirely 
the  class,  "arising  out  of  the 
same  transaction  or  transactions 
connected  with  the  same  subject 
of  action." 

See  Alaska,  Code,  1900,  §  84;  Ari- 
zona, E.  S.,  1913,  §  427;  Arkansas, 
Dig.  Stat.,  1921.  §  1076;  California, 
Code  Civ.  Proc,  1915,  §  427;  Con- 
necticut, G.  S.,  1918,  §  5636;     Idaho, 


270 


The  Complaint. 


[Chap.  III. 


or  more  causes  of  action,  whether  they  are  such  as  were  formerly 
denominated  legal  or  equitable,  or  both,  where  they  are  brought 
to  recover  as  follows : 

1.  Upon  contract,  express  or  implied. 

2.  For  personal  injuries,  except  libel,  slander,  criminal  con- 
versation or  seduction. 

3.  For  libel  or  slander. 

4.  For  injuries  to  real  property. 

5.  Real  property,  in  ejectment,  with  or  without  damages  for 
the  withholding  thereof. 

6.  For  injuries  to  personal  property. 

7.  Chattels,   with   or  without   damage   for   the   taking   and 
detention  thereof. 

8.  Upon  claims  against  a  trustee,  by  virtue  of  a  contract,  or 
by  operation  of  law. 

9.  Upon  claims  arising  out  of  the  same  transaction,  or  trans- 
actions connected  with   the   same   subject   of   action,   and   not 


Comp.  Stat.,  1919,  §  6688;  Indiana, 
Burn's    Ann.    Stat.,    1914,    §    279 
Iowa,    Comp.    Code,   1919,    §    7078 
Kansas,   Gen.   Stat.,   1915,   §    6979 
Kentucky,  Eev.   Code,   1900,   §   S3 
Minnesota,    G.    S.,    1913,    §    7780 
Missouri,  E.  S.,  1919,  §  1221;  Mon 
tana,    Eev.    Code,    1907,     §     6533 
Nebraska,  Ann.  Stat.,  1911,  §  1090 
Nevada,  Eev.  Laws,  1912,  §   5039 
New   Mexico,    Ann.    Stat.,    1915,    § 
4105;    New   York,   Civ.   Prac.   Act, 
1920,   §   258:      "The  plaintiff   may 
unite   in  the   same   complaint   two 
or  more  causes  of  action,  whether 
they    are    such    as    were    formerly 
denominated  legal  or  equitable,  or 
both,   where   they    are   brought    to 
recover  as  follows: 

1.  Upon  contract,  express  or  im- 
plied. 

2.  For  personal  injuries,  except 
libel,  slander,  criminal  conversa- 
tion or  seduction. 

3.  For  libel   or   slander. 

4.  For  injuries  to  real  property. 

5.  Eeal  property  in  ejectment, 
with   or   without   damages   for   the 


withholding  thereof. 

6.  For  injuries  to  personal  prop- 
erty. 

7.  Chattels,  with  or  without 
damages  for  the  taking  or  deten- 
tion thereof. 

8.  Upon  claims  against  a  trustee, 
by  virtue  of  a  contract,  or  by  op- 
eration of  law. 

9.  Upon  claims  arising  out  of 
the  same  transaction,  or  transac- 
tions connected  with  the  same  sub- 
ject of  action,  whether  or  not  in- 
cluded within  one  or  more  of  the 
other  subdivisions  of  this  section. 

10.  For  penalties  incurred  under 
the  conservation  law. 

11.  For  penalties  incurred  under 
the  agricultural  law. 

12.  For  penalties  incurred  under 
the  public  health  law. 

It  must  appear  upon  the  face  of 
the  complaint  that  all  the  causes 
of  action  so  united  belong  to  one 
■  of  the  foregoing  subdivisions  of 
tliis.  section;  that  they  are  consist- 
ent with  each  other;  and  it  must 
appear  upon  the  face  of  the  com- 


Sec.  ].]   Facts  Constituting  the  Cause  of  Action. 


271 


included  within  one  of  the  foregoing  subdivisions  of  this  section. 

10.  For  penalties  incurred  under  the  fislieries,  game  and 
forest  law. 

But  it  must  appear,  upon  the  face  of  the  comphiint,  that  all 
the  causes  of  action,  so  united,  belong  to  one  of  the  foregoing 
subdivisions  of  this  section;  that  thej^  are  consistent  with  each 
other;  and,  except  as  otherwise  prescribed  by  law,  that  they 
affect  all  the  parties  to  the  action ;  and  it  must  appear  upon  the 
face  of  the  complaint,  that  they  do  not  require  different  places 
of  trial." 


Section  1.     The  Facts  Constituting  the  Cause  of  Action. 


Law  and  Fact. 


SMITH  V.  DEAN. 


Supreme  Court  of  Missouri,  1853.     19  Mo.  63. 
In  the  court  below  there  was  a  judgment  for  defendant  on 


plaint,  that  they  do  not  require 
different  places  of  trial. 

A  provision  of  statute  authoriz- 
ing a  particular  action,  or  regulat- 
ing the  practice  or  procedure 
therein,  shall  not  be  construed  to 
prevent  the  plaintiff  from  uniting 
in  the  same  complaint  two  or  more 
causes  of  action  pursuant  to  this 
section." 

North  Carolina,  Consol.  Stat., 
1919,  §  507;  North  Dakota,  Comp. 
Laws,  1913,  §  7466;  Ohio,  Gen. 
Code,  1921,  §  11306;  Oklahoma, 
Eev.  Laws,  1910,  §  4738;  Oregon, 
Comp.  Laws,  1920,  §  94;  South 
Carolina,  Code,  1912,  §  218;  South 
Dakota,  Rev.  Code,  1919,  §  2371; 
Utah,  Comp.  Laws,  1917,  §  6567; 
Washington,  Rem.  &  Bal.  Code, 
1910,  §  296;. Wisconsin,  Stat.,  1919, 


§  2647;  Wyoming,  Comp.  Stat., 
1920,  §§  5606,  5007;  U.  S.  Equity 
Rules,  1912,  No.  26:  "The  plain- 
tiff may  join  in  one  bill  as  many 
causes  of  action,  cognizable  in 
equity,  as  he  may  have  against 
the  defendant.  But  when  there  is 
more  than  one  plaintiff,  the  causes 
of  actions  joined  must  be  joint, 
and  if  there  be  more  than  one  de- 
fendant the  liability  must  be  one 
asserted  against  all  the  material 
defendants,  or  sufficient  grounds 
must  appear  for  uniting  the  causes 
of  action  in  order  to  promote  the 
convenient  administration  of  jus- 
tice. If  it  appear  that  any  such 
causes  of  action  cannot  be  conven- 
iently disposed  of  together,  the 
court   may   order  separate  tri.als." 


272  The  Complaint.  [Chap.  III. 

demurrer  to  the  petition  and  tlie  plaintiff  sued  out  a  writ  of 
error.* 

Gamble,  Judge,  delivered  the  opinion  of  the  court: 
The  plaintiffs  claim  to  recover  on  a  bond  made  by  the  defend- 
ant, Dean,  payable  to  one  Crupper.  They  allege  that  they  are 
the  legal  holders  of  the  bond,  as  trustees  of  Crupper,  for  the 
benefit  of  his  creditors.  The  bond  was  payable  on  the  2d  of 
September,  1840.  There  is  no  allegation  that  the  bond  was 
assigned  to  the  plaintiffs.  The  petition  was  demurred  to  and 
the  demurrer  was  sustained.  Two  questions  are  presented  on 
the  demurrer.  1.  Whether  the  title  of  the  plaintiffs  to  the 
bond  is  sufficiently  stated  in  the  petition.  2.  "Whether  the  peti- 
tion does  not  show  that  the  action  on  the  bond  is  barred  by  the 
statute  of  limitations. 

1.  We  will  not  say  how  far  the  act  requiring  the  assignment 
of  bonds  and  notes  to  be  by  indorsement  thereon,  in  order  to 
enable  the  assignee  to  sue  in  his  own  name,  is  affected  by  the 
code  of  practice,  which  abolishes  the  distinction  between  law  and 
equity,  and  requires  all  suits  to  be  commenced  and  prosecuted 
in  the  name  of  the  real  party  in  interest.  But  if  an  assignee, 
or  the  person  beneficially  interested  in  a  bond  may  sue  thereon, 
without  stating  an  indorsement,  he  must  still  state  his  title  in 
his  petition.  To  state  that  he  is  the  legal  holder,  is  to  state  a 
conclusion  of  law  from  facts^  that  are  traversable.  He  must 
state  facts  that  give  him  the  title  to  the  bond,  when,  upon  its 
own  face,  the  title  appears  to  be  in  another.  The  obligation  of 
the  defendant  was,  to  pay  money  to  Crupper.  By  what  facts 
did  he  become  bound  to  pay  it  to  the  plaintiffs?  The  petition 
fails  to  state  the  facts.    The  petition  says  the  plaintiffs  are  the 

4  statement  supplied  by  the  edi-  is  meant  to  be  proved,  in  order  to 

tor,     and     part     of     the     opinion  give  him  an  opportunity  to  answer 

omitted.  or  traverse  it." 

6  Buller,  J.,  in  The  King  v.  Compare  Ld.  Mansfield,  in  Cort 
Lyme  Eegis,  ^  Douglas  149  (1779)  :  v.  Birkbeek,  1  Douglas  218,  (1779) : 
*  *  *  "It  is  one  of  the  first  *  *  »  "This  (action  on  the 
principles  of  pleading  that  you  case)  is  not  like  an  ejectment,  or 
have  only  occasion  to  state  the  an  action  for  money  had  and  re- 
facts;  which  must  be  done,  for  the  ceived,  where  conclusions  only  are 
purpose  of  informing  the  court,  stated  in  the  declaration,  and  the 
whose  duty  it  is  to  declare  the  law  premises  appear  in  the  evidence." 
arising  upon  those  facts,  and  to  Trover  and  detinue  might  well 
apprize  the  opposite    party  of  what  have  been  included  in  the  list. 


Sec.  1.]  Facts  Constituting  the  Cause  of  Action.  273 

legal  holders,  as  trustees  for  Crupper,  for  the  benefit  of  his 

creditors.     This  is  no  statement  of  any  act  done  by  Crupper 

transferring  the  bond.     The  plaintiffs  may  be  constituted  such 

trustees  by  the  act  of  Crupper,  or  if  the  transaction  occurred 

in  another  state,  they  may  be  trustees  of  an  insolvent  debtor, 

appointed  by  law.     The  petition  is,  in  this  respect,  defective. 
*    *    # 

The  judgment  is,  with  the  concurrence  of  the  other  judges, 
affirmed. 


PAYNE  V.  TREADWELL. 
Supreme  Court  of  California,  1860.     16  Cal.  220. 

On  petition  for  rehearing.  Field,  C.  J.,  delivered  the  opinion 
of  the  Court. 

The  defendants  apply  for  a  rehearing  upon  three  grounds, 
which  were  not  noticed  in  the  opinions  delivered  in  this  case : 
1st.    Error  in  overruling  the  demurrer  to  the  complaint.    *    *    * 

The  first  ground  was  discussed  in  the  briefs  of  counsel,  and 
should  have  been  considered  in  the  opinion ;  for,  if  sustained,  it 
must  lead  to  a  reversal  of  the  judgment.  We  will  now  supply 
the  omission  and  proceed  to  consider  it  at  length. 

The  complaint  alleges  "that  the  said  plaintiffs  are  the  own- 
ers in  fee  as  tenants  in  common,  and  have  the  lawful  right 
and  are  entitled  to  the  possession"  of  the  described  premises, 
and  that  the  said  defendants  wrongfully  entered  upon  and  are 
now  in  the  wrongful  and  unlawful  possession  of  said  premises, 
and  wrongfully  and  unlawfully  withhold  the  possession  thereof 
from  said  plaintiff's.  Then  follows  the  prayer:  "Wlierefore, 
the  plaintiffs  demand  judgment  that  they  recover  and  be  put 
in  possession  of  said  premises,  and  that  the  defendants  pay  dam- 
ages for  the  unlawful  withholding  of  said  premises,  and  for 
the  rents  and  profits  thereof,  in  the  sum  of  $3,000." 

To  the  complaint  the  defendants  demurred,  on  the  ground 
that  it  does  not  state  facts  sufficient  to  constitute  a  cause  of  ac- 
tion. The  demurrer,  if  we  understand  it,  is  also  directed  to 
the  absence  of  any  allegations  as  to  the  damages  claimed  in  the 
prayer. 


274  The  Complaint.  [Chap.  III. 

The  principal  objection  to  the  complaint,  and  the  only  oae 
urged  in  the  brief  of  counsel,  and  in  the  petition  for  a  re- 
hearing, is  that  its  allegations  of  title  and  right  of  possession 
in  the  plaintiffs,  and  of  the  wrongful  and  unlawful  possession 
by  the  defendants,  are  not  allegations  of  facts  but  of  conclu- 
sions of  law. 

It  is  usual  to  speak  of  the  action  to  recover  the  possession  of 
real  property  as  an  action  of  ejectment,  and  it  is  possible  that 
with  the  technical  designation  it  is  sometimes  thought  that  some 
of  the  technical  allegations  peculiar  to  the  old  form  of  the  action 
are  still  necessary.    But  such  is  not  the  case.    There  is  but  one 
form  of  civil  action  in  this  State,  and  all  the  forms  of  plead- 
ings and  the  rules  by  which  their  sufficiency  is  to  be  determined 
are  prescribed  by  the  Practice  Act.     (See  sec.  37.)     The  com- 
plaint must  contain  "a  statement  of  the  facts  constituting  the 
cause  of  action  in  ordinary  and  concise  language,"  and  it  may 
be  verified  by  the  oath  of  the  party,  in  which  case  the  answer 
must  also  be  verified.     The  system  in  this  State  requires  the 
facts  to  be  alleged  as  they  exist,  and  repudiates  all  fictions.    And 
only  such  facts  need  be  alleged  as  are  required  to  be  proved, 
except  to   negative   a   possible   performance   of   the   obligation 
which  is  the  basis  of  the  action,  or  to  negative  an  inference 
from  an  act  which  is  in  itself  indifferent.     Now,  what  facts 
must  be  proved  to  recover  in  ejectment  ?    These  only :   that  the 
plaintiff  is  seized  of  the  premises,  or  of  some  estate  therein  in 
fee,  or  for  life,  or  for  years,  and  that  the  defendant  was  in 
their  possession  at  the  commencement  of  the  action.    The  seizin 
is  the  fact  to  be  alleged.    It  is  a  pleadable  and  issuable  fact,  to 
be  established  by  conveyances  from  a  paramount  source  of  title, 
or  by  evidence  of  prior  possession.    It  is  the  ultimate  fact  upon 
which  the  claim  to  recover  depends,  and  it  is  facts  of  this  char- 
acter which  must  be  alleged,  and  not  the  prior  or  probative 
facts  which  go  to  establish  them.     It  is  the  ultimate  facts — 
which  could  not  be  struck  out  of  a  pleading  without  leaving  it 
insufficient — and  not  the  evidence  of  those  facts,  which  must  be 
stated.     It  is  sufficient,  therefore,  in  a  complaint  in  ejectment 
for  the  plaintiff  to  aver  in  respect  to  his  title^  that  he  is  seized 
of  the  premises,  or  of  some  estate  therein  in  fee,  or  for  life,  or 
for  years,  according  to  the  fact.     The  right  to  the  possession 
follows  as  a  conclusion  of  law  from  the  seizin,  and  need  not  be 
alleged. 


Sec.  1.]  Facts  Constituting  the  Cause  op  Action.  275 

The  possession  of  the  defendant  is  of  course  a  pleadable  and 
issuable  fact,  and  the  only  question  of  difficulty  arises  from  the 
supposed  necessity  of  negativing  its  possible  rightful  charac- 
ter.    That  negative  allegations,  which  are  not  required  to  be 
proved,  may  in  some  actions  be  necessary,  may  be  admitted; 
but  is  there  any  such  necessity  as  to  the  possession  of  the  de- 
fendant in  an  action  of  ejectment?     It  seems  to  us  that  the 
.substance  of  a  complaint  in  ejectment  under  our  practice  is 
this:     "A  owns  certain  real  property,  or  some  interest  in  it; 
the  defendant  has  obtained  possession  of  it,  and  withholds  the 
possession  from  him."     If  the  defendant's  holding  rests  upon 
any  existing  right,  he  should  be  compelled  to  show  it  affirma- 
tively,  in  defense.     The  right  of  possession  accompanies  the 
ownership,  and  from  the  allegation  of  the  fact  of  ownership — 
which  is  the  allegation  of  seizin  in  "ordinary  language" — the 
right  of  present  possession  is  presumed  as  a  matter  of  law.    We 
do  not  think,  therefore,  any  allegation  beyond  that  of  posses- 
sion by  the  defendant  is  necessary,  except  that  he  withholds  the 
possession  from  the  plaintiff.     The  allegation  that  the  posses- 
sion is  "wrongful  or  unlawful"  is  not  the  statement  of  a  fact, 
but  of  a  conclusion  of  law.     The  words  are  mere  surplusage, 
and  though  they  do  not  vitiate,  they  do  no  good.     The  with- 
holding of  the  posesssion  from  one  who  is  seized  of  the  prem- 
ises, is  presumptively  adverse  to  his  right,  and  wrongful.     It  is 
by  force  of  this  presumption  that  the  plaintiff  can  rest,  in  the 
first  instance,  his  case  at  the  trial  upon  proof  of  his  seizin,  and 
of  the  possession  by  the  defendant.    From  these  facts,  when  es- 
tablished, the  law  implies  a  right  to  the  present  possession  in 
the  plaintiff,  and  a  holding  adverse  to  that  right  in  the  de- 
fendant. 

Where  the  pkuntiff  has  been  in  possession  of  the  premises  for 
which  he  sues,  it  will  be  sufficient  for  him  to  allege  in  his  com- 
plaint such  possession,  and  the  entry,  ouster  and  continued 
withholding  by  the  defendant.  Such  allegations  are  proper 
when  they  correspond  with  the  facts,  but  they  are  not  essential, 
as  is  thought  by  many  members  of  the  bar.  In  this  state,  the 
possession  does  not  always  accompany  the  legal  title.  The 
statute  authorizes  a  sale  and  conveyance  of  land  held  adversely 
'jDv  third  persons ;  and  the  legal  title  is  frequently  held  by  par- 
ties who  naver  had  the  possession. 

In  the  Courts  of  New  York— and  it  is  well  known  that  the 


276  The  Complaint.  [Chap.  III. 

Practice  Act  was  taken  principally  from  the  code  of  procedure 
of  that  State — there  was  at  one  time  some  conflict  of  opinion 
as  to  what  were  sufficient  allegations  in  a  complaint  in  eject- 
ment under  the  code.  It  is  now,  however,  settled  by  the  Su- 
preme Court  of  that  State  substantially  in  accordance  with  the 
views  we  have  expressed.  In  Ensign  v.  Sherman  (14  How. 
Prac.  439)  the  plaintiff  averred  in  her  complaint  that  she  had 
lawful  title  as  the  owner  in  fee  simple  to  the  real  estate  in  con- 
troversy, which  was  described;  that  the  defendant  was  in  pos- 
session of  it,  and  unlawfully  withheld  possession  thereof  from 
her,  and  on  demurrer  the  complaint  was  held  sufficient.  Walter 
V.  Lockwood  (23  Barb.  228)  is  to  the  same  effect.     *    *    * 

It  follows,  from  the  views  we  have  expressed,  that  the  com- 
plaint in  the  case  at  bar  is  sufficient.  It  avers  that  the  plaintiffs 
are  the  owners^  in  fee,  as  tenants  in  common,  of  the  premises ; 
that  the  defendants  are  in  possession  of  the  same,  and  withhold 
the  possession  thereof  from  the  plaintiffs.  Whatever  is  alleged 
beyond  these  averments  is  immaterial,  and  may  be  stricken  out. 
The  facts  essential  to  a  good  complaint  are  stated,  and  the  addi- 
tional allegation  of  lawful  right  and  title  in  the  plaintiff,  and 
the  designation  of  "wrongful"  and  'unlawful"  applied  to  the 
possession  and  withholding  of  the  defendant,  though  unneces- 
sary, do  not  vitiate  the  pleading;  and  the  demurrer  was  prop- 
erly overruled. 


SCOFIELD  V.  WHITELEGGE. 

Court  of  Appeals  of  New  York,  1872.     49  N.  Y.  259. 

Appeal  from  judgment  of  the  General  Term  of  the  Superior 
Court  in  the  city  of  New  York,  affirming  a  judgment  in  favor 
of  the  defendant  entered  upon  the  decision  of  the  court  at  cir- 
cuit dismissing  plaintiff's  complaint,  and  also  affirming  an 
order  denying  a  motion  for  a  new  trial.  The  action  was  for 
the    recovery    of    personal    property.      The    complaint   alleged 

6  And  so  in  case  of  a  general  al-  of  specific  personal  property,  Far- 
legation  that  the  plaintiff  was  the  mers  Bk.  v.  Davis,  93  Ore.  655; 
ovner    and    entitled   to   possession       (1919). 


Sec.  1.]  Facts  Constituting  the  Cause  of  Action.  277 

that  the  defendant  had  become  possessed  of  and  wrongfully 
detained  from  plaintiff  a  piano  of  the  value  of  $400,  and  de- 
manded a  return  thereof,  etc.  The  answer  denied  the  possession 
of  any  property  belonging  to  the  plaintiff,  and  denied  the 
wrongful  detention  and  plaintiff's  ownership  of  the  piano. 
Upon  the  trial,  before  the  case  was  opened,  defendant  moved 
for  a  dismissal  of  the  complaint  upon  the  ground  that  it  did 
not  state  facts  sufficient  to  constitute  a  cause  of  action,  which 
motion  was  granted. 

FoLGER,  J. :  The  complaint  in  this  action  does  not  in  terms 
show  any  right  or  title  in  the  plaintiff  upon  which  the  former 
action  of  replevin  would  lie.  That  action  could  be  maintained 
only  by  one  who  had  the  general  or  a  special  property  in  the 
thing  taken  or  detained.  That  property  must  have  been  averred 
in  the  declaration,  or  it  would  not  have  sufficed  the  plaintiff's 
purpose.  (Pattison  v.  Adams,  7  Hill  126;  see  also  Bond  v. 
Mitchell,  3  Barb.  304;  Vandenburgh  v.  Van  Valkenburgh,  8  id. 
217.)  The  chapter  of  the  Code  of  Procedure  of  ''The  Claim 
and  Delivery  of  Personal  Property,"  was  intended  to  supply 
the  provisional  relief  which  was  theretofore  obtained  in  the 
action  of  replevin.  (See  Commissioner's  Report,  p.  169.) 
There  was  no  intention  to  change  the  requisites  to  maintain  the 
action.  There  was  no  change  made.  Indeed  the  code,  as  re- 
ported, expressly  required  an  affidavit  from  the  plaintiff,  where 
a  delivery  was  to  be  made,  that  he  was  the  owner  of  the  prop- 
erty, or  lawfully  entitled  to  the  possession  thereof  by  virtue  of 
a  special  property  therein.  (Commissioner's  Report,  p.  170, 
§  182,  sub.  1.)     And  so  it  now  is.     (Code,  §  207.) 

Nor  is  it  less  necessary  now  than  then,  for  the  plaintiff  to 
aver  the  facts  which  constitute  his  cause  of  action.  He  must 
allege  the  facts,  and  not  the  evidence ;  he  must  allege  facts,  and 
not  conclusions  of  law.  The  plaintiff  here  alleges  that  the  de- 
fendant wrongfully  detains  from  him  the  chattel  in  question. 
If,  indeed,  that  be  true,  then  it  must  be  that  the  plaintiff  has  a 
general  or  special  property  in  the  chattel,  and  the  right  of  im- 
mediate possession.  But  unless  he  has  that  general  or  special 
property  and  right  of  immediate  possession,  it  cannot  be  true 
that  it  is  wrongfully  detained  from  him.  The  last,  the  wrong- 
ful detention,  grows  from  the  first,  the  property  and  the  right 


278  The  Complaint.  [Chap.  III. 

of  possession.  The  last  is  the  conclusion.'  The  first  is  the  fact, 
upon  which  that  conclusion  is  based.  It  is  the  fact  which  in 
pleading  must  be  alleged. 

Where  facts  are  stated  in  a  pleading  which  militate  with  a 
conclusion  of  law  therein  stated,  the  statement  of  facts  will 
prevail.  (Jones  v.  Phoenix  Bank,  8  N.  Y.  228;  Robinson  v. 
Steward,  3.0  id.  189.)  And  is  not  the  statement  of  a  conclusion 
of  law,  without  a  fact  averred  to  sustain  it  an  immaterial 
statement  ? 

The  plaintiff  says  that  the  defendant  wrongfully  detains 
from  him  the  piano.  The  fact  involved  in  that  statement  is  that 
he  detains  it.  Granted,  then,  that  he  detains  it.  Why  is  it 
wrongful?  Because  the  plaintiff  is  the  owner  by  general  or 
special  right  of  property,  and  entitled  to  the  immediate  pos- 
session. But  these  are  the  facts  which  are  to  be  shown.  They 
have  not  been  averred.    How,  then,  can  they  be  shown  ? 

The  plaintiff  claims,  however,  that  the  averment  in  the  an- 
swer denying  detention,  and  denying  ownership  in  the  plain- 
tiff, puts  in  issue  those  facts,  and  that  the  defect  in  the  com- 
plaint is  cured  by  that  averment.     He  cites  Bate  v.  Graham 
(11  N.  Y.  237).     But  there  the  allegation  in  the  answer  was 
the  affirmation  of  the  very  fact  which  was  objected,  the  com- 
plaint should  have  averred.     There  the  omission  from  the  coin- 
plaint  was  of  an  allegation  that  the  defendant  maintained  that 
a  certain  assignment  of  an  insolvent  debtor  was  not  fraudulent. 
The  answer  of  the  defendant  made  the  very  averment  which 
was  omitted  from  the  complaint,  and  the  omission  of  which  was 
the  ground  of  the  defendant's  objection  to  the  complaint.     Tlie 
court  well  held  that  the  complaint  might  have  been  amended; 
for  both  parties  at  the  trial  were  maintaining  the  same  fact. 
Here,  however,  the  parties  do  not  seek  to  maintain  the  same 
fact ;  and  that  which  the  answer  avers  is  the  direct  opposite  of 
that 'which  the  plaintiff  must  establish  to  recover.     Would  the 
plaintiff  take  the  averment  of  the  answer  into  his  complaint  as 
a  part  of  its  allegation?     Then  he  would  allege  that  he  is  not 
the  owner  of  the  property,  and  that  the  defendant  has  not  de- 
tained it  from  him.     And  then  his  complaint  would  show  him 

7  Lyon,  J.,  in  Tronson  v.  Union  the     detention     un.iust,     are     mere 

Lumbering      Co.,      38      Wis.      202,  propositions   of  law,   and   no   facts 

(1875):     *     *     *     "The  averments  are  pleaded  to  support  them." 
that  the  taking  was  wrongful  and 


Sec.  1.]  Facts  Constituting  the  Cause  of  Action,  279 

without  cause  of  action.     (See  Pelton  v.  Ward,  3  Caines  73.) 

The  same  considerations  are  applicable  to  the  lack  of  the 
averment  of  a  demand  and  refusal;  if  tlie  plaintiff's  case  is  to 
depend  upon  a  wrongful  detention,  without  a  wrongful  taking 
in  the  first  instance. 

The  case  of  Levin  v.  Russell  (42  N.  Y.  251)  is  cited  by  tlie 
appellant.  There  are  two  facts  which  make  it  inapplicable  here. 
There  was  in  it  no  motion  to  dismiss  the  complaint  for  its  in- 
sufficiency ;  and  proof  was  made  at  the  trial  without  objection 
of  facts  making  a  cause  of  action.  Again :  The  complaint  did 
allege  that  the  property  was  that  of  the  plaintiff.  This  does 
not  appear  in  the  report  of  the  case  in  42  New  York;  and  from 
the  statement  there,  one  would  think  that  the  complaint  was 
without  an  allegation  of  the  plaintiff's  ownership.  On  refer- 
ring to  the  printed  case,  as  it  is  found  in  the  series  of  bound 
volumes  of  cases  in  this  court  in  the  State  Library,  the  averment 
reads  thus :  "The  following  goods  and  chattels  of  the  plaintiff." 
This  is  in  exact  accordance  with  the  precedent  for  a  declaration 
in  replevin.     (Pattison  v.  Adams,  supra.) 

The  judgment  should  be  affirmed  with  costs  to  the  respondent. 


SHERIDAN  V.  JACKSON. 

Coiirt  of  Appeals  of  New  York,  1878.     72  N.  Y.  170. 

Earl,  J.  On  the  trial  of  this  action,  after  plaintiff  had 
opened  his  case,  the  court  dismissed  the  complaint  on  the  ground 
that  it  did  not  state  facts  sufficient  to  constitute  a  cause  of  ac- 
tion. He  did  not  ask  for  leave  to  amend  his  complaint,  but 
he  excepted  to  the  decision  and  appealed  to  the  General  Term, 
and  then  to  this  court,  insisting  all  the  time  that  his  complaint 
was  sufficient.  Under  such  circumstances  the  complaint  must 
be  treated  here  as  if  it  had  been  demurred  to,  and  the  sole 
question  to  be  considered  here  is,  whether  it  sufficiently  states 
a  cause  of  action  ? 

It  alleges  that  plaintiff  "was,  on  the  19tli  day  of  November, 
1856,  entitled  to  the  possession  of,  and  the  rents,  issues  and 
profits  thereof,  and  has  been  since  and  still  is  entitled  to  the 
same,"  of  seventy -five  lots  of  land  in  the  city  of  Brooklyn,  de- 


280  The  Complaint.  [Chap.  III. 

scribing  them ;  that  on  or  about  the  26th  day  of  January,  1870, 
an  action  was  begun  in  the  Supreme  Court  between  the  defend- 
ants Jackson  as  plaintiffs  and  the  other  defendants,  excepting 
Cameron,  as  defendants,  and  that  the  parties  to  that  action 
claimed  as  between  each  other  some  interest  in  these  premises 
or  the  rents,  or  profits  thereof ;  that  afterwards  in  that  action 
defendant  Cameron  was  appointed  receiver  of  the  rents,  issues 
and  profits  of  the  said  premises;  that  subsequently  rents  and 
profits  amounting  to  a  large  sum  arising  from  the  said  prem- 
ises came  into  his  hands,  and  that  plaintiff  had  demanded  from 
him  the  rents  and  profits  so  received  by  him,  and  had  been  re- 
fused; and  then  the  plaintiff  demanded  relief,  that  the  defend- 
ant Cameron  account  for  all  moneys  received  by  him  in  the  ac- 
tion in  which  he  was  appointed  receiver;  that  he  be  restrained 
from  "paying  over  to  any  person  or  persons,  or  making  any 
disposition  of  the  said  moneys,"  so  received,  or  afterwards  to 
be  received  by  him;  "that  he  be  required  to  pay  the  said  moneys 
into  court,"  or  to  the  plaintiff,  or  to  a  receiver  to  be  appointed 
in  the  action;  that  such  order  be  made  as  is  just;  that  a  judg- 
ment and  decree  be  made  adjudging  and  requiring  the  said 
moneys  to  be  paid  to  the  plaintiff.  No  relief  or  judgment  was 
demanded  against  any  of  the  defendants  but  the  receiver 
Cameron. 

The  complaint  does  not  allege  any  facts  showing  that  the 
plaintiff  was  entitled  to  the  rents  and  profits.  It  does  not  al- 
lege that  he  owned  or  ever  possessed  the  premises,  or  that  he 
owned  the  rents.  The  allegation  that  he  was  entitled^  to  the  pos- 
session of  the  land  and  to  the  rents  and  profits,  is  a  mere  al- 
legation of  a  conclusion  of  law.  The  facts  should  have  been  al- 
leged from  which  such  a  conclusion  of  law  coald  have  been 
drawn.  (Pattison  v.  Adams,  7  Hill  126;  Scofield  v.  White- 
legge,  49  N.  Y.  259.) 

There  is  a  further  defect.  The  complaint  does  not  show  anj' 
right  in  the  plaintiff  to  intervene  in  the  litigation  between  the 

8  An  allegation  that  by  a  cer-  the  pleading,  its  construction  is 
tain  foreign  law  the  title  to  prop-  for  the  court,  and  therefore  the 
erty  vested  in  the  plaintiff  is  re-  construction  placed  upon  it  by  the 
garded  as  a  statement  of  fact,  Sul-  pleader  is  not  admitted  by  demur- 
tan  V.  Tiryakian,  213  N.  Y.  429,  rer,  Finney  v.  Guy,  189  U.  S.  335, 
(1913).  Where,  however,  the  for-  (1903). 
eign  statute  is  set   out  in  full  in 


Sec.  1.]   Facts  Constituting  the  Cause  op  Action.  281 

defendants.  There  is  no  allegation  that  any  of  the  parties  to 
that  action  claimed  anything  therein  in  hostility  to  him,  or 
showing  that  he  could  in  any  way  be  damaged  by  that  litiga- 
tion, or  bound  by  anything  done  or  adjudicated  therein.  What 
right  had  he  then  to  come  into  court  and  seek  to  take  or  control 
the  moneys  which  they,  in  a  litigation  between  themselves,  had 
placed  in  the  hands  of  a  receiver  to  be  disposed  of  in  that  ac- 
tion? 

There  is,  therefore,  abundant  reason  for  holding  that  the 
complaint  did  not  state  facts  sufficient  to  constitute  a  cause  of 
action.    *    *    • 

Judgment  affirmed. 


McCAUGHEY  v.  SCHUETTE. 
Supreme  Court  of  California,  1896.     117  Col.  223. 

Searls,  C.  This  is  an  action  to  recover  possession  from  the 
defendants,  who  are  appellants  here,  of  lots  A,  B,  C,  J,  K,  and 
L  in  block  131  of  Horton's  addition  to  San  Diego,  county  of 
San  Diego,  state  of  California.  Plaintiff  had  judgment,  irom 
which  judgment,  and  from  an  order  denying  their  motion  for  a 
new  trial,  defendants  appeal. 

The  complaint  was  demurred  to  upon  the  ground,  among 
others,  that  it  does  not  state  facts  sufficient  to  constitute  a  cause 
of  action.  We  think  the  demurrer  should  have  been  sustained. 
The  complaint  may  be  summarized  thus:  (1)  December  22, 
1891,  defendants  made  their  promissory  note  to  plaintiff  for 
$2,000,  and  to  secure  the  payment  thereof  executed  a  mortgage 
upon  the  lots  of  land  sought  to  be  recovered  in  this  action.  (2) 
Afterwards,  and  on  the  22d  day  of  March,  1893,  plaintiff  and 
defendants  entered  into  an  agreement  by  the  terms  of  which 
said  defendants  agreed  to  convey  to* plaintiff,  and  the  latter 
agreed  to  take,  said  real  property  in  full  payment  of  the  note, 
and  to  release  defendants  from  liability  thereon,  and  deliver 
the  same  up  to  defendants,  and  to  discharge  of  record  the  mort- 
gage. (3)  That  on  the  23d  day  of  December,  1893,  defendants 
delivered  to  plaintiff  their  grant  deed  of  said  premises,  and  the 
latter  delivered  up  the  note  and  discharged  the  mortgage  of 


19 


282  The  Compl-\int.  [Chap.  III. 

record.  Said  deed  from  defendants  to  plaintiff  and  the  note 
and  mortgage  are  made  part  of  the  complaint.  (4)  At  the  date 
of  the  delivery  of  the  deed  there  was  $2,501.28  due  on  the 
note,  and  the  deed  was  made  in  payment  thereof.  (5)  Defend- 
ants are  in  possession  of  the  premises,  and  plaintiff  has  de- 
manded possession  thereof,  which  said  defendants  refused  to 
deliver  up,  and  exclude  plaintiff  therefrom  against  his  will  and 
right.  Wherefore  he  demands  judgment  for  the  delivery  of 
possession  of  said  premises,  etc.  It  is  a  fundamental  rule  of 
our  code  pleading  that  ultimate,  and  not  probative,  facts  are  to 
be  averred  in  a  pleading.  Miles  v.  McDermott,  31  Cal.  271. 
In  Thomas  v.  Desmond,  63  Cal.  426,  it  was  said,  in  substance, 
that,  where  a  complaint  merely  states  the  evidence  from  which 
ultimate  facts  are  deducible,  a  demurrer  lies.  In  Siter  v. 
Jewett,  33  Cal.  92,  it  was  held  that  averments  in  a  complaint 
of  the  facts  constituting  a  deraignment  of  title  are  but  aver- 
ments of  evidence,  and  are  not  admitted  by  a  failure  to  deny 
them  in  the  answer.  Recoullat  v.  Rene,  32  Cal.  450,  is  to  like 
effect.  In  Gates  v.  Salmon,  46  Cal.  361,  it  was  held  that  an 
allegation  in  a  complaint  that  B.  executed  an  instrument  in 
writing,  purporting  to  convey  to  T.  a  tract  of  land,  which  is 
recorded  (stating  where),  is  a  mere  allegation  of  evidence,  and 
may  be  disregarded  as  surplusage.  Such  evidentiary  matters 
should  be  stricken  out  in  an  action  of  ejectment.  Wilson  v. 
Cleaveland,  30  Cal.  192.  See,  also,  San  Joaquin  Co.  v.  Budd, 
96  Cal.  47  (30  Pae.  967).  It  will  be  observed  that  in  the 
complaint  in  the  present  case  there  is  no  averment  of  seisin, 
or  ownership,  or  possession,  or  right  of  possession  to  the  de- 
manded premises,  but  the  pleader  contents  himself  with  a  state- 
ment of  evidentiary  facts,  which,  if  proven  at  the  trial,  would 
authorize  the  court  in  finding  the  ultimate  fact  of  ownership^ 
and  right  to  possession  in  the  plaintiff.  In  Frederick  v.  Tracy, 
98  Cal.  658  (33  Pae.  750),  it  was  said  of  such  a  pleading  that 
it  was  insufficient,  and  that  a  complaint  which  stated  only  facts 

9  See     Murphy     v.     Bennett,     68  Compare  Greenwade  v.  Mills,  31 

Cal.     528,     (1886),    that,    under    a  Miss.    46-i,     (1856),    to    the    effect 

statute    providing     for     a     special  that    an    instruction    to    the    jury, 

finding    of    facts,    a    finding    that  that  if  they  found  that  G.  had  no 

plaintiff   was   not   the   owner,   etc.,  title  to  a  slave  their  verdict     should 

was   a   finding   of   fact    and   not   a  be   for   M.,   was   bad   as   leaving   a 

conclusion  of  law.  question  of  law  to   the  jury. 


/ 


Sec.  1.]  Facts  Constituting  the  Cause  op  Action.  283 

from  which  the  ultimate  fact  might  be  deduced  was  subject  to 
a  demurrer.  In  City  of  Los  Angeles  v.  Signoret,  50  Cal.  298, 
the  action  was  to  enforce  a  lien  for  the  construction  of  a  sewer. 
The  complaint  referred  to  an  exhibit,  attached  to  and  made  a 
part  thereof,  for  particulars,  which  exhibit  recited  the  various 
steps  necessary  to  create  the  lien,  but  on  demurrer  the  pleading 
was  held  insufficient.  The  complaint  here  is  argumentative; 
that  is  to  say,  the  affirmative  existence  of  the  ultimate  fact  is 
left  to  inference  or  argimient.  Such  pleading  was  bad  at  com- 
mon law,  and  is  none  the  less  so  under  our  code  system.  To 
uphold  such  a  pleading  is  to  encourage  prolixity,  and  a  wide 
departure  from  that  definiteness,  certaint}'-,  and  perspicuity 
which  it  was  one  of  the  paramount  objects  sought  to  be  en- 
forced by  the  code  system  of  pleading,  and  that,  too,  with  no 
resultant  effect,  except  to  incumber  the  record  with  verbiage, 
and  enhance  the  cost  of  litigation.  "We  recommend  that  the 
judgment  and  order  appealed  from  be  reversed,  and  that  the 
court  below  be  directed  to  sustain  the  demurrer  to  plaintiff's 
complaint,  and  that  he  have  leave  to  amend. 

Per  Curiam.  For  the  reasons  given  in  the  foregoing  opinion, 
the  judgment  and  order  appealed  from  are  reversed,  and  the 
court  below  directed  to  sustain  the  demurrer  to  plaintiff's  com- 
plaint, and  that  he  have  leave  to  amend. 


JACCARD  V.  ANDERSON. 
Supreme  Court  of  Missouri,  1862.    32  Mo.  188. 

Dryden,  Judge,  delivered  the  opinion  of  the  court. 

The  plaintiffs,  as  the  last  endorsers  of  a  promissory  note,  sue 
the  defendant,  as  first  endorser.  Their  petition  is  as  follows, 
viz. : 

"Eugene  Jaccard,  Augustus  Mcrmor,  and  D.  Constant  Jac- 
card,  plaintiffs,  v.  William  C.  Anderson,  Jr.,  defendant.  In  St. 
Louis  Circuit  court,  St.  Louis  county. 

"Plaintiffs,  by  Alex.  J.  P.  Garesche,  their  attorney,  state  that 
they  are  partners,  associated  together  as  E.  Jaccard  &  Co. ;  that 
Washington  King,  by  his  negotiable  note  herewith  filed,  dated 
April  16,  1856,  promised  to  pay  to  defendant,  or  his  order,  one 


284  The  Complaint.  [Chap.  III. 

thousand  dollars,  one  year  after  date;  that  defendant  assigned 
by  endorsement  and  delivered  said  note  to  E.  H.  Bussell,  and 
said  E.  H.  Bussell  assigned  by  endorsement  and  delivered  same 
to  the  plaintiffs.  Plaintiffs  further  state  that  said  note  was 
not  protested  at  the  defendant's  instance  and  request,  he  waiv- 
ing protest;  that  no  part  of  said  note  has  been  paid.  They 
further  ask  judgment  for  said  sum  of  one  thousand  dollars, 
interest,  and  costs. 

Alex  J.  P.  Garesche, 
Attorney   for   plaintiffs." 

The  defendant  answered,  and  a  trial  of  the  case  was  had,  and 
a  verdict  and  judgment  was  rendered  for  the  plaintiffs.  Several 
exceptions  were  taken  in  the  progress  of  the  trial,  which  it  will 
be  unnecessary  for  us  to  notice.  In  due  time  the  defendant 
moved  in  arrest  of  the  judgment  because  of  the  insufficiency  of 
the  petition,  and  the  motion  being  overruled,  he  excepted  and 
appealed  to  this  court. 

The  petition  is  defective  in  not  stating  facts  sufficient  to  con- 
stitute a  cause  of  action.  In  order  to  render  an  assignor  liable 
to  the  assignee  it  must  appear  by  the  petition,  either  that  the 
note  assigned  is  negotiable,  or  if  not  negotiable,  that  the  maker 
was  insolvent  or  non-resident  of  the  state;  or  that  the  assignee, 
in  the  diligent  prosecution  of  a  suit  against  the  maker,  had  been 
unsuccessful  in  making  the  debt.  It  does  not  appear  by  any 
averment  or  fact  in  this  case  that  the  note  assigned  was  a  negoti- 
able instrument,  nor  are  such  facts  shown  as  are  necessary  to 
impose  a  liability  upon  the  defendant  as  assignor  of  a  note  not 
negotiable.  True,  it  is  stated,  or  rather  recited  in  the  petition, 
that  the  note  is  negotiable ;  but  this  is  the  statement  of  the  con- 
clusion or  opinion  of  the  pleader,  not  the  averment  of  a  fact 
upon  which  issue  could  be  taken  or  tlie  judgment  of  the  law 
be  pronounced.  The  operative  words  in  a  negotiable  note  under 
the  law  of  this  state  are  "for  value  received,  negotiable  and 
payable  without  defalcation,"  and  their  employment  in  the  in- 
strument declared  upon  must  appear  in  the  petition  in  order  to 
enable  the  court  to  see  and  pronounce  the  legal  effect  of  such 
instrument.     *     *     * 

The  court  erred  in  overruling  the  motion  in  arrest,  and  for 
this  cause  its  judgment  is  reversed  and  the  cause  remanded, 
with  directions  to  permit  the  plaintiffs  to  amend  their  petition, 
if  they  desire  to  do  so.    The  other  judges  concur. 


Sec.  1.1  Facts  Constituting  the  Cause  of  Action.  285 

FAIRBANKS  v.  ISHAM. 

Supreme  Court  of  Wisconsin,  1862.    16  Wis.  118. 

The  action  was  brought  to  foreclose  a  mortgage  executed  by 
the  defendant  Platto,  who  conveyed  the  mortgaged  premises  to 
the  defendant  Isham,  and  he  was  for  that  reason  made  a  party 
defendant  to  the  action.  The  defendant  Isham  demurred  to  the 
complaint  on  the  ground  that  it  did  not  state  facts  sufficient  to 
constitute  a  cause  for  action.  The  county  court  overruled  the 
demurrer  and  the  defendant  Isham  appealed.  The  points  aris- 
ing on  the  demurrer  are  stated  in  the  opinion  of  the  court. 

Dixon,  C.  J.^"  There  is  no  error  in  the  case.  As  to  the  first 
one  assigned,  that  it  is  irregular  for  the  pleader  to  set  out  what 
he  conceives  to  be  the  substance  of  the  condition  of  the  bond, 
the  counsel  is  condemned  by  his  own  authorities.  To  state  the 
substance  of  a  written  instrument  is  to  state  it  according  to  its 
legal  effect ;  and  this  has  always  been  allowable.  In  doing  so, 
the  pleader  has  this  danger  to  guard  against,  that  he  may  mis- 
take the  legal  effect,  which  if  he  does,  there  will  be  a  variance, 
and  the  instrument  will  be  excluded  at  the  trial.  If,  however, 
he  mistake  the  legal  effect  and  yet  state  facts  constituting  a 
cause  of  action,  the  remedy  is  not  by  demurrer;  but  by  objection 
to  evidence  at  the  hearing.  If  the  complaint  contains  a  state- 
ment of  facts  which,  in  judgment  of  law,  constitute  an  indebted- 
ness or  liability,  the  demurrer  must  be  overruled,  for  it  admits 
the  truth  of  the  facts  thus  pleaded.  As  it  is  not  contended  that 
the  facts  stated  are  not  sufficient,  but  only  that  j)leadiug  them 
"in  substance"  is  not  permissible,  the  latter  question  only  is 
examined.  Mr.  Chitty,  at  the  page  cited  by  the  counsel,  (1  Ch. 
PI.  306)  says:  "It  frequently  becomes  an  important  question, 
when  the  party  is  about  to  set  out  some  written  instrument, 
whether  it  will  be  advisable  to  follow  the  terms  of  the  instru- 
ment or  to  give  merely  its  substance.  The  latter,  if  given  cor- 
rectly, it  ivill  be  a  sufficient  compliance  with  the  rule,  which  only 
requires  the  legal  effect  to  be  stated."  Again,  "from  some  later 
cases  it  rather  appears,  that  the  true  rule  in  setting  out  a  writ- 
ten contract  may  be,  that  where  the  party  professes  to  give  the 

10  Part   of   the   opinion   omitted. 


286 


The  Complaint. 


[Chap.  III. 


legal  effect  and  operation  of  the  deed,  and  the  legal  operation 
is  different  from  that  which  appears  by  his  statement,  a  fatal 
variance  will  occur,  although  he  adopts  the  exact  expressions 
contained  in  the  instrument;  but  when  he  does  not  profess  to 
give  the  exact  substance  and  legal  effect  only,  but  to  state  the 
very  words^  of  the  deed,  the  court  will  then  construe^  the  deed 
for  him."  In  Fairbanks  v.  Bloomfield,  2  Duer  349,  the  facts 
upon  which  it  was  claimed  that  the  plaintiff  had  a  mortgage, 


1  Compare    Valliant,  J.,  in  Reilly 
V.   Cullen,   159   Mo.   322:      *      *      * 
"The    petition    itself    is    not    be- 
yond  criticism  under   the  rules   of 
good  pleading  (although  it  follows 
■what  seems  to  have  become  a  not 
unusual    practice)    and    if    it    had 
been  demurred  to  on  the  statutory 
ground  that  it  did  not  state  facts 
constituting  a  cause  of  action,  the 
demurrer    should    have    been    sus- 
tained.     The   statute   requires   the 
facts  constituting  the  cause  of  ac- 
tion   to    be    stated.      By    this    is 
meant  the  ultimate  facts  as  distin- 
guished   from    the    evidentiary    or 
argumentative   facts.     The  statute 
in  this  respect   lays  down  for  the 
code  pleader  in  clearer  terms  the 
same  rule  that  the  common  law  on 
this    subject    prescribes,    that    is, 
that  a  plea  must  not  be  argumen- 
tative.    To  set  out  in  the  petition 
in    haec    verba    the     contract     on 
which    the    case   is    founded    is    to 
plead  the  evidence,  not  the  facts. 
A  pleader  should  determine  in  his 
own   mind  the   legal   effect   of   the 
written    contract    or    other    docu- 
ment that  underlies  his  case,  and 
plead  it  by  its  legal  effect  as  he 
understands  it,  and  as  he  purposes 
to  maintain  it.     If  the  instrument 
is  merely  copied  into  the  petition 
it    leaves    uncertain    the    issue    in- 
tended to  be  tendered,   depending 
on   the   construction   that   may   be 
put  upon  it  at  the  trial.     Our  code 
pleading     furnishes     no     authority 


for  such  uncertainty.  But  where, 
as  in  this  case,  no  demurrer  is  filed 
and  no  objection  is  made  to  the 
petition  until  the  trial  is  on,  it 
comes  too  late,  if,  by  construing 
the  petition  then  as  stating  what 
the  evidence  pleaded  tends  to 
prove,  it  constitutes  a  cause  of  ac- 
tion. This  petition  is  susceptible 
of  such  construction." 

2  Devens,  J.,  in  Cunningham  v. 
"Washburn,  119  Mass.  224:  ♦  *  * 
"The  legal  interpretation  of  a 
contract  is  for  the  court,  which  Is 
to  determine,  where  the  words  are 
unequivocal  in  their  meaning, 
what  it  imports  and  what  are  the 
obligations  imposed  by  it.  As, 
however,  words  and  phrases  are 
often  used  which  are  technical  or 
ambiguous,  and  sometimes,  those 
which,  although  not  in  themselves 
unintelligible,  requires  knowledge 
of  the  subject,  in  connection  with 
which  they  are  used,  to  apply 
them  intelligently,  it  may  be  nec- 
essary to  resort  to  extrinsic  evi- 
dence to  ascertain  thereby  the  in- 
tent of  the  parties  in  using  them, 
in  order  that  the  contract  may  be 
construed  in  the  light  of  the  in- 
formation thus  acquired.  The  fact 
thus  to  be  inquired  into  are  deter 
mined  by  the  jury  under  the  direc- 
tion of  the  court,  which  instructs 
them  as  to  the  construction  to  be 
given  to  the  contract  according  to 
the  various  aspects  in  which  such 
facts  may  present  themselves." 


Sec.  1.]  Facts  Constituting  the  Cause  of  Action.  287 

were  not  stated  in  substance  or  otherwise,^  so  as  to  enable  the 
court  to  determine  that  question.  And  in  Lienan  v.  Lincoln, 
idem  670,  the  decision  was  that  there  were  no  facts,  in  whatever 
form  of  statement,  showing  that  the  defendant  had  incurred 
the  liability  charged.  Stanwood  v.  Scovel,  4  Pick.  422,  presents 
the  common  case  of  variance  arising  upon  objection  to  evi- 
dence. The  point  of  pleading  involved  in  Adams  v.  The  Mayor, 
4  Duer  295,  was,  whether  it  was  necessary  for  the  plaintiff  to 
aver  compliance  with  conditions  precedent,  the  performance  of 
which  he  was  bound  to  prove  in  order  to  entitle  himself  to  a 
verdict.  It  w^as  held  that  the  conditions  "should  be  set  out  at 
length  or  in  substance,"  with  proper  averments  to  show  that 
they  had  been  complied  with.    *    *    * 

Judgment  affirmed. 


LEACH  V.  RHODES,  ADM'R. 

Supreme  Court  of  Indiana,  1874.    49  Ind.  291. 

Downey,  J.  This  was  a  claim  filed  by  the  appellants  against 
the  appellee.  It  is  in  the  form  of  a  regular  complaint.  In  it 
the  claim  is  stated,  in  substance,  as  follows :  That  the  deceased 
held  two  promissory  notes  against  Thomas  H.  Ellison,  secured 
by  a  mortgage  on  an  interest  in  a  grist-mill  and  small  piece  of 
land ;  that  the  deceased  sold  and  delivered  the  notes  to  the  plain- 
tiffs "for  a  full  and  valuable  consideration,"  and  agreed  and 
guaranteed  the  prompt  payment  of  the  same,  and  that  he  would 
collect  the  notes  and  pay  the  amount  over  to  the  plaintiffs,  if 
not  paid  by  the  maker.  It  is  then  averred  that  the  deceased  in- 
stituted an  action  on  the  notes  and  mortgage,  and  recovered  a 
judgment  against  Ellison  for  the  amount  of  the  notes  and  for 
a  foreclosure  of  the  mortgage;  that  the  mortgaged  premises 
were  sold  and  purchased  by  the  plaintiff  Moore,  who  paid  there- 
for forty  dollars,  thirty-one  dollars  of  which  went  to  pay  the 
costs  in  the  action;  that  Moore  sold  the  land,  so  purchased  by 
him,  at  private  sale  for  one  hundred  dollars,  which  sum  was 

8  Statutes  usually  require  the  it,  to  be  filed  with  the  complaint, 
instrument   sued  on,  or   a  copy  of 


288  The  Complaint.  [Chap.  III. 

credited  on  the  debt;  that  Ellison  is  insolvent;  that  the  balance 
due  of  the  debt  is  four  hundred  and  sixty-two  dollars  and  in- 
terest, which  remains  unpaid,  etc. 

Answer  in  ten  paragraphs.  Demurrers  filed  to  all  of  the  para- 
graphs, except  the  first,  which  was  the  general  denial.  De- 
murrers sustained  to  all  the  paragraphs  except  the  fifth,  eighth, 
ninth  and  tenth,  to  which  the  demurrers  were  overruled.  Issues 
were  formed,  and  there  was  a  trial  by  the  court,  finding  for  the 
defendant,  motion  for  a  new  trial  overruled,  and  judgment  for 
the  defendant. 

The  overruling  of  the  demurrers  to  the  fifth,  eighth,  ninth 
and  tenth  paragraphs  of  the  answer  is  the  first  alleged  error. 

"We  think  there  was  no  error  in  this  ruling,  because  we  think 
the  complaint  is  substantially  defective.  To  constitute  a  valid 
contract,  there  must  be  a  consideration.  In  stating  a  contract 
in  a  pleading,  the  consideration  must  be  stated,  as  well  as  the 
promise,  in  every  case  except  where  the  pleading  is  upon  a  deed, 
bill  of  exchange,  promissory  note,  or  other  instrument  in  writ- 
ing which  imports  a  consideration.  In  this  case,  the  action  is 
not  upon  the  notes  which  were  sold  by  the  deceased  to  the  plain- 
tifi^s,  nor  upon  any  endorsement  of  them,  nor  any  other  instru- 
ment in  writing  importing  a  consideration.  But  it  is  upon  a 
parol  or  oral  contract.  It  was  necessary,  therefore,  to  state  a 
consideration  for  the  promise  of  the  deceased.  In  alleging  a 
consideration,  the  particular  facts  must  be  stated.  It  will  not 
do  to  say,  "for  a  full  and  valuable  consideration"  the  deceased 
promised,  etc.  The  code  has  not  changed  this  rule  of  pleading 
in  those  cases  in  which  it  is  necessary  to  allege  a  consideration. 
It  is  a  conclusion  of  law  to  allege  that  there  was  a  full  and  val- 
uable consideration,  without  stating  the  particular  facts.  It  is 
for  the  court,  and  not  the  pleader,  to  decide  whether  or  not  the 
facts  stated  show  a  consideration.*    Brush  v.  Raney,  34  Ind.  416. 

"The  consideration  must  either  appear  impliedly  from  the 

4  Compare   Bk.   v.   Ger.   Ins.   Co.,  See,  also  California  Packing  Co. 

72  Wis.   535,    (1888),  to  the   effect  v.    Kelly,    228    N.    Y.    49,    (1920), 

that  an  allegation  that   defendant  holding    such    an    allegation    suffi- 

for    a    valuable    consideration    en-  cient     as     "a    plain     and    concise 

tered   into   the   contract,   etc.,   was  statement   of   the   ultimate   princi- 

Bufficient  against  general  demurrer,  pal  and  issuable  fact  of  considera- 

though     subject    to     a    motion    to  tion. " 
make  more  specific. 


Sec.  1.]  Facts  Constituting  the  Cause  of  Action.  289 

instrument  itself,  as  a  promissory  note  or  bill  of  exchange,  or 
the  complaint  must  expressly  state  the  particular  consideration 
on  which  the  contract  is  founded.  And  it  is  essential  that  the 
consideration  stated  should  be  legally  sufficient  to  support  the 
promise  for  the  breach  of  which  the  action  is  brought."  Moak's 
Van  Santvoord  Pleadings,  217,  star  paging.  See,  also  1  Chitty 
PI.  292,  et  seq.;  1  Saunders  PI.  &  Ev.  187,  et  seq. 

These  authorities  point  out  the  difference  between  executed 
and  executory  considerations,  and  give  the  rules  for  alleging 
each.  But  we  need  not  consider  the  subject  in  its  details,  as, 
in  this  case,  no  attempt  is  made  to  state  the  nature  and  partic- 
ulars of  the  consideration,  or  to  show  whether  it  was  of  the  one 
kind  or  the  other.  "We  need  not  examine  any  other  questions 
made  in  the  case. 

Judgment  affirmed. 


KERR  V.  STEMAN. 
Supreme  Court  of  Iowa,  1887.    72  la.  241. 

Action  to  recover  damages  alleged  to  have  been  sustained  by 
reason  of  the  fraudulent  representations  of  the  defendant,  by 
which  the  plaintiff,  Eliza  A.  Kerr,  was  induced  to  sell  and  con- 
vey certain  real  estate.  The  defendant  moved  that  the  plaintiff 
be  made  to  make  a  more  specific  statement  of  the  facts  consti- 
tuting the  fraud.  The  court  sustained  the  motion.  The  plain- 
tiff elected  to  stand  upon  her  petition.  Judgment  was  rendered 
against  her  for  costs,  and  she  appeals. 

Adams,  C.  J.  The  petition  shows  clearly  enough  that  the 
plaintiff  was  at  one  time  the  owner  of  certain  real  estate  con- 
sisting of  a  town  lot  and  an  undivided  third  of  a  tract  of  40 
acres;  that  she  employed  the  defendant  to  make  an  exchange  of 
the  same  for  other  property ;  that  he  reported  that  he  had  nego- 
tiated an  exchange,  stating  the  terms,  and  she  executed  the  re- 
quired conveyances.  The  petition  further  states  that  the  de- 
fendant made  a  false  report,  with  the  intent  to  cheat  and  defraud 
her;  but  wherein  the  same  was  false  docs  not  appear.  She 
should  have  set  out  in  what  the  falsity  consisted,  in  order  that 
the  defendant  might  know  what  he  should  come  prepared  to 


290  The  Complaint.  [Chap.  III. 

disprove.  The  doctrine  is  elementary  that  whoever  sets  up  a 
fraud  must  do  more  than  allege  fraud  in  general  and  abstract 
terms.  He  must  set  out  the  specific  facts  in  which  the  fraud 
consists.  The  petition  in  this  case  seems  to  us  to  be  clearly  in- 
sufficient, and  we  think  that  the  court  did  not  err  in  sustaining 
the  defendant's  motion  for  a  more  specific^  statement. 

Affirmed. 


PEHRSON  V.  HEWITT. 

Supreme  Court  of  California,  1889.    79  Cal.  598. 

Thornton,  J.  The  plaintiffs  bring  this  action  to  have  certain 
judgments,  and  the  executions  issued  thereon,  and  the  levies 
made  under  them,  vacated  and  set  aside ;  that  an  adjudication  in 
insolvency  may  be  vacated,  and  the  proceedings  dismissed;  and 
for  an  injunction  restraining  certain  defendants,  etc.,  from  sell- 
ing certain  property  described  in  the  complaint.  The  defend- 
ants contend  that  the  complaint  does  not  state  facts  sufficient  to 
constitute  a  cause  of  action,  and  that,  therefore,  the  judgment 
and  order  denying  a  new  trial  should  be  reversed.  The  defend- 
ants demurred  to  the  complaint  on  the  above-stated  ground.  The 
complaint  sets  forth  that  the  defendant  Hewitt  was  indebted  to 
the  several  plaintiffs  in  several  sums  for  divers  matters;  that 
they  commenced  actions  against  Hewitt  in  a  justice's  court  to 
recover  these  amounts,  and  sued  out  writs  of  attachments,  which 

6  In  Cohn  v.  Goldman,  76  N.  Y.  In  Gay  v.  Gregory,  140  Ky.  266, 

284,   (1879),  a  complaint  was  held  (1910),   it   was   said   in   holding   a 

bad  on  general  demurrer,  where  it  similar  complaint  insufficient.     "It 

merely     alleged     that     defendants,  was  her  (plaintiffs)  duty  to  allege 

"by    connivance,    conspiracy    and  the  substance  of  the  acts  and  con 

combination,     did    cheat    and    de-  duct    of    the    appellee    which    she 

fraud    the    plaintiff    out    of    eight  considered    wrongful    and    fraudu- 

bales    of    Havana    tobacco."      In  lent,    to    apprise    appellee    of    her 

Hall  V.  Hall,  225  N.  Y.  342,  (1919),  contention,  and  in   order  that   the 

an  allegation  that  defendant   fraud-  court     might     determine     whether 

ulently     represented     to     plaintiff  they  were  such  as  would  make  ap- 

that  it  would  be  to  his  interest  to  pellee  liable  for  her  alleged  loss." 

execute    an    assignment,    was    held  And   so   in   Church   v.   Swetlancl, 

Insufficient  on  general  demurrer,  243  Fed.  289,   (1917), 


Sec.  1.]   Facts  Constituting  the  Cause  of  Action.  ^91 

were  levied  by  the  sheriff  of  the  county  upon  the  property  of 
defendant  He\\dtt,  set  forth  in  the  complaint ;  that  before  the 
commencement  of  these  actions  Hewitt  filed  in  the  same  justice's 
court  certain  pretended  confessions  of  judgment  in  favor  of  sev- 
eral defendants  for  certain  amounts  alleged  to  be  due  to  each  of 
the  defendants,  which  confessions  of  judgment  were  accepted  by 
the  several  defendants  in  whose  favor  they  were  made.  Plain- 
tiffs further  allege  that  said  pretended  confessions  of  judgment 
were  made  by  Hewitt  and  accepted  by  defendants  with  the  in- 
tent and  design  of  hindering,  delaying,  and  defrauding  the  plain- 
tiffs and  other  creditors  of  Hewitt  by  a  combination  among  them, 
by  which  they  were  to  levy  executions  upon  all  the  property  of 
Hewitt,  and  have  the  same  sold  for  the  amount  of  said  confes- 
sions to  said  defendants,  or  some  of  them,  and  that  after  said 
sale  had  been  made  that  Hewitt  was  to  be  placed  again  in  full 
possession  and  control  of  the  property  for  his  own  use  and  bene- 
fit, and  fraudulently  protected  by  such  proceedings  against  the 
claims  of  plaintiffs,  and  thus  rendering  any  judgments  which 
plaintiffs  might  recover  against  Hewitt  ineffectual.  It  is  further 
averred  that  executions  afterwards  issued  on  the  judgments 
above  mentioned,  and  came  into  the  hands  of  the  defendant 
Eckels,  who  was  a  constable,  and  that  the  constable  made  a  pre- 
tended levy  under  the  said  executions  on  the  property  above 
mentioned ;  that  this  levy  was  made  and  abandoned  prior  to  the 
levy  of  the  attachments  of  plaintiffs  above  set  forth,  and  that 
since  the  abandonment  the  constable  has  never  had  possession  or 
control  of  any  of  the  property  above  referred  to ;  that  the  eon- 
stable  pretends  that  the  levies  made  by  him  are  in  full  force,  and 
that  he  is  proceeding  to  sell  said  property  under  these  levies. 
The  defendant  Hewitt  is  insolvent  and  was  insolvent  when  he 
made  the  confessions  of  judgment  above  stated,  and  that  in  fur- 
therance of  the  above  stated  agreement  by  defendants,  and  to 
carry  out  and  complete  the  fraudulent  scheme  of  defendants, 
did,  on  the  16th  of  March,  1886,  file  his  petition  in  insolvency; 
that  this  petition  was  not  filed  in  good  faith,  but  for  the  wrong- 
ful and  fraudulent  purposes  of  defeating  the  attachment  liens 
of  plaintiffs,  to  the  end  that  the  pretended  levies  of  the  execu- 
tions might  hold  the  property,  and  a  sale  of  the  same  might  be 
made  in  such  manner  as  to  fraudulently  cover  it,  and  protect  it 
from  the  claims  of  plaintiffs. 

"We  see  no  element  of  fraud  b^    defendants  in  the  matters 


292  The  Complaint.  [Chap.  III. 

averred  in  the  complaint.  It  is  not  averred  that  the  debts  for 
which  the  judgments  were  confessed  by  Hewitt,  in  favor  of  the 
several  defendants,  were  not  justly  due  by  Hewitt  to  them. 
Styling  the  confessions  of  judgments  "pretended,"  as  was  done 
by  the  plaintiffs  in  the  complaint,  did  not  show  that  they  were 
so.  The  facts  should  have  been  set  forth  from  which  it  would 
appear  that  they  were  pretended  and  simulated,  and  not  real 
and  genuine.  There  was  no  law  in  existence  when  the  confes- 
sions were  made  which  prevented  Hewitt  from  confessing  a  judg- 
ment in  favor  of  a  hona  fide  creditor,  and  there  is  nothing  al- 
leged in  the  complaint  which  tends  to  show  that  the  defendants 
were  not  honest  creditors  to  whom  Hewitt  was  justly  indebted. 
The  word  "pretended"  is  a  mere  epithet,  which,  in  the  absence 
of  facts  showing  the  pretended  character  of  the  confessions  or  of 
the  judgments,  imports  nothing  impugning  either  the  confes- 
sions or  the  judgments.  It  sufficiently  appears  that  confessions 
of  judgments  were  filed  in  the  justice's  court,  that  judgments 
were  entered  on  them,  and  executions  issued  on  the  judgments. 
It  is  not  sufficient  to  allege  that  confessions  or  judgments  arc 
fraudulent,  but  the  facts  showing  that  they  are  such  must  he 
averred,  so  that  the  court  can  perceive  that  such  instruments  aie 
fraudulent.^  The  facts  showing  the  fraud  must  be  made  to  ap- 
pear by  averment.  See  Kinder  v.  Macy,  7  Cal.  206 ;  Harris  v. 
Taylor,  15  Cal.  348 ;  Meeker  v.  Harris,  19  Cal.  289,  290. 

The  debts  for  which  the  judgments  were  confessed  being  just- 
ly due  by  Hewitt,  we  see  no  fraud  in  the  defendants  agreeing  to 
buy  the  property  at  the  sale  had  on  their  executions,  and,  if  they 
did  buy  it,  giving  it  to  Hewitt,  if  they  elected  to  do  so.  To  hold 
that  they  could  not  do  so  would  be  to  hold  that  a  man  could  not 
do  what  he  chooses  with  his  own  property.  The  defendants,  if 
they  bought  at  the  sale  under  execution,  would  pay  their  own 
money  for  the  property  bought,  and  when  so  bought  and  paid 
for  it  would  belong  to  them,  and  they  could  do  with  it  what  they 
chose  to  do.  They  might  give  it  away  to  Hewitt  or  any  one  else, 
or  might  destroy  it  if  they  saw  fit.  We  cannot  see  how  a  court 
of  equity  can  set  aside  an  adjudication  in  insolvency  or  dismiss 
such  a  proceeding.  It  is  averred  that  Hewitt  was  insolvent,  and 
if  so  he  had  a  right  to  apply  for  a  discharge  under  the  statutes 
in  relation  to  insolvency.     There  can  be  no  fraud  in  the  pursu- 

6  But  see  Laun  v.  Kipp,  155  Wis.  347,    (1914). 


Sec.  1.]  Facts  Constituting  the  Cause  op  Action.  293 

ance  of  a  remedy  allowed  by  law.  Hewitt,  in  applying  for  his 
discharge  in  insolvency,  was  taking  the  steps  provided  by  law  for 
having  his  property  equitably  and  fairly  subjected  to  the  satis- 
faction of  his  creditors.  Of  this,  no  creditor  has  a  right  to  com- 
plain. If  he  has  no  right  to  apply  to  be  discharged  from  the 
claims  of  his  creditors,  they  will  have  an  opportunity  of  showing 
that,  and  preventing  his  discharge,  in  the  insolvency  proceeding. 
If  the  confessions  of  judgment  made  to  defendants  are  pro- 
hibited by  the  insolvent  laws,  the  assignee  in  insolvency  can  have 
them  adjudged  void,  and  on  a  proper  proceeding  they  will  be  so 
adjudged,  but  no  such  proceeding  is  before  us  in  this  case.  As 
the  agreement  made  by  defendants  described  above  was  free 
from  fraud,  we  cannot  see  that  the  application  in  insolvency  to 
carry  out  such  arrangement  could  or  would  be  fraudulent.  We 
are  of  opinion  that  the  complaint  does  not  state  facts  sufficient 
to  constitute  a  cause  of  action,  and  therefore  the  judgment  and 
order  are  reversed,  and  the  cause  remanded,  with  directions  to 
the  court  below  to  sustain  the  demurrer  to  the  complaint,  and 
for  other  proceedings  according  to  law. 


NICHOLS  v.  NICHOLS. 

Supreme  Court  of  Missouri,  1896.    134  Mo.  187. 

Macfarlane,  J.  A  demurrer  to  plaintiff's  amended  petition 
was  sustained  and  from  the  judgment  thereon  in  favor  of  de- 
fendants she  appealed.     The  petition  was  as  follows: 

"For  amended  petition  herein,  plaintiff  complains  and  alleges 
that  on  the  eleventh  day  of  February,  1892,  she  was  lawfully 
married  to  and  became  the  wife  of  George  Nichols.     That  from 

the  date  of  said  marriage  till  the day  of  March,  1893,  she 

and  her  said  husband,  George  Nichols,  continued  to  live  together 
as  husband  and  wife.  That  during  all  that  time  plaintiff  faith- 
fully demeaned  herself  and  discharged  all  her  duties  as  the  M'ife 
of  said  George  Nichols;  and  she  and  her  husband  lived  happily 
together  and  enjoyed  the  aid,  support,  companionship,  society, 
and  affection  of  each  other. 

That  the  defendants,  well  knowing  that  plaintiff  and  George 
Nichols  were  husliand  and  wife,  and  that  they  were  living  hap- 


294  The  Complaint.  [Chap.  III. 

pily  together,  enjoying  the  aid,  support,  companionship,  society, 
and  affection  of  each  other,  wrongfully,  wickedly,  and  malicious- 
ly acted  and  co-operated  together,  with  the  wrongful,  wicked, 
and  malicious  intent  to  cause  plaintiff's  said  husband  to  leave 
and  abandon  her,  and  to  cease  living  with  plaintiff  as  her  hus- 
band, and  to  deprive  plaintiff  of  the  aid,  support,  companion- 
ship, society,  protection,  and  affection  of  her  said  husband ;  and 

on  the  day  of  March,  1893,  the  defendants,  pursuant  to 

their  said  wicked,  wrongful,  and  malicious  intent,  did  wrong- 
fully, wickedly,  and  maliciously  entice,  influence,  and  induce 
plaintiff's  said  husband  to  leave  and  abandon  her;  and  her  said 
husband,  being  influenced  by  and  acting  under  the  said  wrong- 
ful, wicked,  and  malicious  enticement,  influence,  and  inducement 
of  defendants,  did  then  leave  and  abandon  her,  and  being  influ- 
enced by  and  acting  under  said  wrongful,  wicked,  and  malicious 
enticement,  influence,  and  inducement,  has  ever  since  remained 
away  from  and  separate  and  apart  from  her.  And  ever  since 
said  abandonment,  the  defendants  have  wrongfully,  wickedly, 
and  maliciously  detained  and  harbored  plaintiff's  said  husband, 
and  have  kept  him  separate  and  apart  from  her;  and  have  by 
their  said  wrongful,  wicked,  and  malicious  acts  and  conduct  de- 
prived plaintiff,  and  still  do  deprive  her,  of  the  aid,  support, 
companionship,  society,  protection,  and  affection  of  her  said 
husband. 

Wherefore,  plaintiff  says  she  is  damaged  in  the  sum  of  ten 
thousand  dollars  ($10,000),  for  which  sum  and  for  costs  she 
prays  judgment." 

Each  defendant  filed  a  separate  demurrer,  assigning  as 
grounds  thereof  the  following : 

"1.  Because  the  petition  on  its  face  fails  to  state  any  cause 
of  action  against  this  defendant. 

"2.  Because  the  petition  fails  to  state  or  set  out  in  detail  the 
facts  which  it  is  claimed  caused  George  Nichols,  husband  of 
plaintiff,  to  separate  from  her,  and  live  separate  and  apart 
from  her,  plaintiff. 

"3.  Because  there  is  a  defect  of  parties  plaintiff  in  this,  that 
if  any  cause  of  action  is  stated,  George  Nichols  is  a  necessary 
party  plaintiff. ' ' 

The  demurrers  were  sustained,  and  plaintiff  declining  to  plead 
further,  final  judgment  was  rendered  for  defendants. 

I.     The  right  of  a  vnie  to  maintain  an  action  for  damages 


Sec.  1.]  Facts  Constituting  the  Cause  op  Action.  295 

against  a  third  person  for  alienating  the  affections  of  her  hus- 
band and  thereby  depriving  her  of  his  comfort  and  society  has 
been  affirmed  by  this  court  since  this  judgment  was  rendered. 
Clow  V.  Chapman,  125  Mo.  103.    *    *    * 

II.  Was  the  demurrer  properly  sustained  upon  the  second 
ground  stated?  Does  the  petition  state  facts  sufficient  to  con- 
stitute a  cause  of  action  ? 

The  substantial  charge  in  the  petition  is  that  defendants 
wrongfully  enticed,  influenced,  and  induced  plaintiff's  husband 
to  abandon  her  and  to  live  separately  and  apart  from  her,  there- 
by depriving,  and  intending  to  deprive,  her  of  his  affection,  com- 
fort, society,  and  support.  Defendants  insist  that  this  is  but  a 
statement  of  a  conclusion  of  law,  that  the  acts  done  and  words 
spoken  should  have  been  stated.''^ 

The  code  requires  the  facts  which  constitute  the  cause  of  ac- 
tion to  be  stated.  A  statement  of  mere  legal  conclusions  is  not 
sufficient,  and,  on  the  other  hand,  a  detailed  statement  of  the 
evidence  is  not  required.  Difficulty  is  sometimes  experienced  in 
drawing  the  line  between  a  statement  of  fact  and  a  conclusion  of 
law,  and  between  a  statement  of  the  ultimate  fact  and  a  state- 
ment of  the  evidence  by  which  such  fact  is  to  be  established. 

It  may  be  stated  generally  that  the  ultimate,  constitutive,  and 
issuable  facts  must  be  stated.  Issuable  facts  are  defined  to  be 
"those  upon  which  a  material  issue  may  be  taken."  Evidential 
or  probative  facts,  which  should  not  be  stated,  are  those  upon 
which  a  material  issue^  cannot  be  taken  and  from  which  the  is- 

7  In     Winsmore     v.     Greenbank,  tc  the  objection  that  this  is  leav- 

Willes,    577     (G.    P.    1745),    which  ing   law   to    the   jury,   it   must    be 

was   a   similar   action   by  the   hus-  left   to   them   in   a   variety   of   in- 

band,   it    was    urged    in    arrest    of  stances  where  the  issue  is  compli- 

judgment  that  the  declaration  was  cated. " 

insufficient    in    alle<xing    generally  8  Payne,  J.,  in  Rogers  v.  Milwau- 

that  the  defendant  unlawfully  and  kee,  13  Wis.  610,  (1861):     •     •     • 

unjustly    procured,    etc.,    and    that  "It    is    undoubtedly    true    that    a 

the    particular    acts    should    have  larger  part  of  the  complaint  is  not 

been   stated.  good    pleading.      The    plaintiff    re- 

Willes,  L.  C.  J.:      *     *     *     "It  lied  on  an  absence  of  preliminary 

is   not   necessary   to   set    forth    all  proceedings,  essential  to  the  valid- 

the  facts  to  show  how  it  was  un-  ity  of  the  tax  sales.     But  instead 

lawful;    that  would  make  the  plead-  of     averring     either     of    his     own 

ings    intolerable,     and     would     in-  knowledge     or     upon     information 

crease  the  length  and  expense  un-  and    belief   that    such    proceedings 

necessarily.      *      *      *      In    answer  v.ore  not  had,  he  only  averred  that 


296  The  Complaint.  [Chap.  III. 

suable  facts  may  be  inferred.  Bliss  on  Code  Pleading  (3d  Ed.) 
sec.  206. 

Pomeroy  says:  "The  material  facts  which  constitute  the 
ground  of  relief  *  *  *  should  be  averred  as  they  actually 
existed  or  took  place,  and  not  the  legal  effect  or  aspect  of  those 
facts,  and  not  the  mere  evidence  or  probative  matter  by  which 
their  existence  is  established."  Pom.  Rem.  Rights  (2  Ed.),  sec. 
517. 

Again  the  same  author  says:  "The  allegations  must  be  of 
those  principal,  determinate,  constitutive  facts,  upon  the  exist- 
ence of  which,  as  stated,  the  entire  cause  of  action  rests,  so  that, 
when  denied,  the  issue  thus  formed  with  each  would  involve  the 
whole  remedial  right."    Section  526. 

The  ultimate  fact  which  is  constitutive  of  the  cause  of  action 
in  this  ease  is  that  of  wrongfully  inducing  the  husband  of  plain- 
tiff to  abandon  her.  The  methods  adopted  to  accomplish  that 
purpose  are  mere  matters  of  evidence  from  which  the  ultimate 
fact  is  proved  or  may  be  inferred.  Various  methods  may  have 
been  adopted  to  accomplish  the  purpose,  and  a  denial  of  them, 
if  stated,  would  not  form  a  single  issue  involving  the  whole 
remedial  right.  They  would  be  probative,  and  not  constitutive, 
facts.  In  the  opinion  of  the  jury  an  inference  that  defendants 
wrongfully  induced  plaintiff's  husband  to  leave  her  might  not 
be  drawTi  from  one  or  more  acts  proved,  but  might  readily  be 
drawn  from  them  all  taken  in  the  aggregate.  No  issue  could, 
therefore,  be  made  upon  each  act  and  statement  of  defendants 
that  would  conclude  the  right  of  plaintiff  to  recover. 

Wrongfully  inducing  plaintiff's  husband  to  abandon  her  is  a 
conclusion  of  fact  depending  upon  the  proof  of  acts,  declara- 
tions, and  conduct  of  defendants.  It  is  not  a  conclusion  of  law, 
but  a  fact  from  which  a  legal  conclusion  is  to  be  drawn.  That 
legal  conclusion  was  questioned  in  the  first  ground  of  the  de- 
murrer.    Judgment  reversed  and  cause  remanded.    All  concur. 

he  had  searched  in  the  proper  of-  upon    such    allegations    would    be 

fices    for    the    evidence    that    they  whether     he     had     searched     and 

were    had,    and    failed    to    find    it.  found   the   evidence   or  not,  which 

The  only  issue  that  could  be  made  v/ould   be   entirely  immaterial." 


Sec.  1.]  Facts  Constituting  the  Cause  op  Action.  297 

SCHUBERT  V.  RICHTER. 

Supreme  Court  of  Wisconsin,  1896.    92  Wis.  199. 

The  complaint  alleges,  in  effect,  that  on  March  1,  1894,  the 
firm  of  Richter,  Schubert  &  Dick,  then  conducting  a  general 
real-estate,  loan,  and  insurance  business,  in  Milwaukee,  as  co- 
partners, made  their  promissory  note  in  writing,  bearing  date 
on  that  day,  for  $2,274.33,  payable  one  year  after  date,  to  one 
Joseph  Flanner,  with  interest,  and  thereupon  delivered  the 
same  to  said  Flanner  for  full  value ;  that  thereafter,  and  before 
maturity  of  said  note,  said  Flanner  sold  and  delivered  the  same 
to  this  plaintiff;  that  on  August  1,  1894,  said  partnership  ex- 
pired by  limitation,  and  thereafter  the  plaintiff  and  defendant 
each  entered  into  business  for  himself  in  the  same  line  of  busi- 
ness as  had  formerly  been  conducted  by  the  firm ;  that,  to  sup- 
ply capital  therefor,  the  plaintiff  had  negotiated  with  the  First 
National  Bank  of  Milwaukee  for  a  loan  upon  said  note  to  the 
amount  thereof;  that  the  defendant,  with  intent  to  injure  and 
impair  the  business  credit  of  the  plaintiff,  and  to  prevent  him 
from  obtaining  credit  on  said  note,  warned  the  cashier  of  said 
bank  not  to  discount  or  purchase  said  note  from  the  plaintiff, — 
thereby  giving  the  cashier  to  understand  that  he  repudiated  his 
obligation  on  said  note,  that  the  possession  thereof  by  the  plain- 
tiff was  wrongful  and  felonious,  and  that  the  plaintiff  was  not 
entitled  to  sell,  assign,  or  transfer  said  note  to  the  bank ;  that  the 
defendant  gave  the  cashier  to  understand,  by  inference  and  by 
direct  charge,  that  said  note  was  without  value  and  that  the 
plaintiff  had  no  right  to  the  possession  thereof  and  no  property 
therein,  and  that  he  was  attempting  to  obtain  the  money  of  said 
bank  fraudulently;  that  in  consequence  of  such  warning  the 
bank  refused  to  accept  said  note,  or  to  advance  any  money  there- 
on, or  to  extend  any  credit  to  the  plaintiff;  that  by  reason  there- 
of the  credit  of  the  plaintiff  was  ruined  at  said  bank  and  other 
money  institutions  in  Milwaukee,  and  hence  he  was  unable  to 
obtain  capital  with  which  to  conduct  business ;  that  by  said  act 
the  defendant  intended  to  injure  the  business  reputation  of  the 
plaintiff;  and  that  such  acts  were  done,  and  such  warnings  and 
statements  made,  by  the  defendant  falsely  and  maliciously  and 
•with  intent  to  injure  the  plaintiff,  and  by  reason  whereof  the 


298  The  Complaint.  [Chap.  III. 

plaintiff  was  injured  in  his  business  and  reputation,  and  for 
which  he  claims  damages. 

From  an  order  sustaining  a  demurrer  to  such  complaint  for 
insufficiency,  the  plaintiff  appeals. 

Cassoday,  C.  J.  The  complaint  entirely  fails  to  state  or  al- 
lege what  particular  words  were  spoken  by  the  defendant  which 
the  plaintiff  claims  were  defamatory.  It  merely  states  the 
pleader's  inferences  or  conclusions,  drawn  from  something  sup- 
posed to  have  been  said,  but  not  alleged.  ''The  words^  in  which 
the  slander  is  conveyed  must  be  stated  in  the  complaint,  in  order 
that  the  court  may  judge  whether  they  constitute  a  ground  of 
action,  and  also  because  the  defendant  is  entitled  to  know  the 
precise  charge  against  him,  and  cannot  shape  his  case  until  he 
knows.  It  is  not  sufficient  to  set  forth  the  tenor  or  effect  of  the 
words  used  by  the  defendant. ' '  13  Am.  &  Eng.  Ency.  of  Law,  456. 
This  is  not  only  elementary,  but  has  frequently  been  sanctioned 

by  this  court.    Zeig  v.  Ort,  3  Pin.  30 ;  K v.  H ,  20  Wis. 

239 ;  Simonsen  v.  Herold,  61  Wis.  626 ;  Pelzer  v.  Bonish,  67  Wis. 
291 ;  Schild  V.  Legler,  82  Wis.  73.  It  follows  that  the  demurrer 
was  properly  sustained. 

Judgment  affirmed. 


GRIGGS  V.  CITY  OP  ST.  PAUL. 

Supreme  Court  of  Minnesota,  1864.    9  Minn.  246. 

Wilson,  J.  To  the  complaint  in  this  case  the  defendant  in- 
terposed a  general  demurrer.  It  becomes  necessary  for  us  there- 
fore to  inquire  whether  the  facts  alleged  in  the  complaint  show 
that  the  plaintiffs  have  a  cause  of  action.  The  gist  of  the  action 
is  the  invalidity  and  worthlessness  of  certain  "certificates"  de- 
livered to  the  plaintiffs  in  payment  for  work  and  labor  by  them 
performed.  The  allegations  of  the  complaint  on  this  point  are, 
"that  by  reason  of  gross  negligence  of  said  commissioners,  and 
of  all  the  defendant's  agents  in  that  behalf,  in  causing  to  be 

9  The  plaintiff  is  accordingly  re-  ology,   though   to   the   same   effect, 
quired   to    prove   the    exact    words  will  not  support  the  action,  Christ- 
alleged,  or  enough  of  them  to  sus-  al  v.  Craig,  80  Mo,  367,   (1883). 
tain   the   charge;   different  phrase- 


Sec.  1.]  Facts  Constituting  the  Cause  of  Action.  299 

made  an  estimate  of  the  whole  expense  of  such  work,  ajid  of  the 
proportion  to  be  assessed  and  charged  to  each  lot,  and  of  the 
number  of  cubic  yards  to  be  filled  in  and  excavated  in  front  of 
each  lot,  and  in  not  causing  such  estimate  to  be  filed  with  the 
then  city  comptroller  of  said  city,  for  the  inspection  of  the  par- 
ties interested,  each  and  all  of  the  said  certificates  at  the  time 
of  said  tender  and  delivery  were  utterly  worthless,  and  no  lien 
upon,  nor  collectible  out  of,  the  lots  therein  described  in  any 
manner,"  etc. 

There  is  hardly  a  single  traversable  fact  alleged.  The  state- 
ment that  said  certificates  are  worthless  and  no  lien  upon  nor 
collectible  out  of  said  lots  is  a  conclusion  of  law,  and  therefore 
not  admitted  by  the  demurrer.  "The  gross  negligence  of  the 
defendant's  agents"  does  not  necessarily  render  the  defendant 
liable  to  an  action.  The  acts  of  either  omission  or  commission 
injurious  to  the  plaintiffs  (if  they  were  such)  by  which  such 
negligence  was  manifested,  should  have  been  specifically  averred 
in  the  complaint.  They  were  part  of  the  facts  constituting  the 
plaintiff's  cause  of  action,  and  therefore  it  was  incumbent  on 
them  to  allege  and  prove  them. 

The  inference,  we  think,  to  be  drawn  from  the  language  of 
the  complaint  above  quoted  is  that  the  "estimate"  was  made, 
but  in  a  negligent  manner,  and  that  it  was  filed,  but  not  with 
the  "then"  city  comptroller.  The  point  of  time  intended  to  be 
fixed  by  the  pleader  by  the  use  of  the  language  "the  then  city 
comptroller,"  is  not  apparent,  and  as  the  object  of  this  suit  is  to 
show  the  "certificates"  to  be  void,  not  merely  less  valuable  on 
account  of  negligence  of  defendant's  agents,  the  time  of  filing 
the  "estimate"  may  be  a  material  fact,  and  it  therefore  should 
have  been  alleged.  See  Nash  v.  City  of  St.  Paul,  8  Minn.  (179)  ; 
id.  (184-5.) 

But  we  do  not  wish  to  here  intimate  any  opinion  on  the  ques- 
tion of  the  validity  of  these  "certificates."  Such  question  is  not 
properly  before  us.  It  is  not  required  of  either  the  defendant  or 
the  court  to  spell  out  from  inferential  statements  or  recitals  the 
meaning  of  the  complaint.  Every  fact  which  the  plaintiff  must 
prove  to  enable  him  to  maintain  his  action,  and  which  the  de- 
fendant has  a  right  to  controvert  in  his  answer,  must  be  (7/5- 
tinctly  averred,  and  a  conclusion  of  law  not  justified  by  the 


300  The  Complaint.  [Chap.  111. 

facts^**  stated  is  irrelevant  and  nugatory.  Hall  v.  Bartlett,  9 
Barb.  301 ;  Allen  v.  Patterson,  7  N.  Y.  478 ;  Boyce  v.  Brown,  7 
Barb.  85 ;  Garvey  v.  Fowler,  4  Sandf.  665 ;  Smith  v.  Leland,  2 
Duer.  508-9 ;  Jones  v.  Phoenix  Bank,  8  N.  Y.  238 ;  Lienan  v. 
Lincoln,  2  Duer.  672 ;  Laurence  v.  Wright,  id.  674-5 ;  Mann  v. 
Morewood,  5  Sandf.  564 ;  City  of  Buffalo  v.  Holloway,  7  N.  Y. 
498 ;  Schenk  v.  Naylor,  2  Duer.  675. 

The  law  on  this  subject  is  very  clearly  laid  down  by  Mr.  Jus- 
tice Duer,  in  case  of  Mann  v.  Morewood,  in  the  following  lan- 
guage :  ' '  The  language  of  this  court,  and  I  believe  of  all  its 
judges,  from  the  time  the  Code  has  been  in  operation,  has  been 
uniform,  that  a  complaint  must  set  forth  all  the  material  and 
issuable  facts  which  are  relied  on  as  establishing  the  plaintiff's 
right  of  action,  and  not  the  inferences  from  those  facts  which 
under  the  advice  of  his  counsel  he  may  deem  to  be  the  conclu- 
sion of  law.  To  draw  proper  conclusions  from  the  facts  which 
are  relied  on  as  constituting  a  cause  of  action,  or  a  valid  defense, 
is  the  exclusive  province  and  duty  of  the  court,  and  to  enable  the 
court  to  discharge  that  duty,  the  fact  themselves,  not  the  con- 
elusions  that  are  supposed  to  flow  from  them,  must  be  stated  in 
the  pleading." 

The  demurrer  only  admits  the  traversable  facts,  not  inferences 
or  conclusions  of  law.  Moss  v.  Riddle,  5  Cranch  351 ;  Hall  v. 
Bartlett,  9  Barb.  301;  Ford  v.  Peering,  1  Ves.  Jr.  (Sumner's 
ed.)  77,  and  cases  cited  in  note;  City  of  Buffalo  v.  Holloway,  7 
N.  Y.  493.  The  demurrer  we  think  was  well  taken,  and  the 
order  of  the  court  below  overruling  it  is  reversed. 

Judgment  reversed. 

lOPolger,  J.,  in  Lange  v.  Bene-  satisfied  with  that  general  allega- 

dict,  78  N.  Y.  12,  (1878):     *     *     •  tion.     It   rests  the  general   allega- 

"The   plaintiff  makes   a   prelimin-  tion  upon  the  special   circumstances 

ary    point,    that    inasmuch    as    the  afterwards    set    forth    in    it,    and 

complaint   avers   that   the    defend-  which  are  made  up  of  all  or  nearly 

ant   wrongfully  and  willfully,   and  all  the  facts  which  we  have  above 

without  jurisdiction,  falsely  impris-  recited.     So   we   have   to   consider 

oned  the  plaintiff,  that,  therefore,  them  as  well  as  the  general  allega- 

as    a    technical    rule    of    pleading,  tion,  and  to  treat  the  general   al- 

the  demurrer  having  admitted  the  legation  as  no  broader  or  more  ef- 

allegations  of  the  complaint,  there  fectual    than    the    special    cireum- 

must  be  judgment  for  the  plaintiff.  stances  upon  which  the  complaint 

But   the    complaint    does   not    rest  rests  it." 


Sec,  1.]  Facts  Constituting  the  Cause  of  Action.  30.1 

L.  &  N.  R.  R.  CO.  V.  WOLFE. 

Court  of  Appeals  of  Kentucky,  1882.    80  Ky.  8.2. 

Judge  Hargis  delivered  the  opinion  of  the  court. 

It  is  alleged  in  substance  by  the  appellee  that  there  was  a  hole 
in  the  platform  connected  with  the  appellant's  depot;  that  the 
opening,  and  its  dangerous  character,  were  known  to  the  appel- 
lant, but  it  negligently,  wantonly,  and  willfully,  failed  and  re- 
fused to  repair  it,  and  while  removing  a  box  of  freight  from  said 
depot  to  his  wagon,  having  necessarily  to  pass  over  said  hole, 
he  fell  into  it,  and  broke  the  left  patella  or  knee  cap  of  his  leg, 
for  which  he  prayed  damages. 

From  a  judgment,  upon  a  verdict  of  $2,000  in  favor  of  appel- 
lee, the  appellant  prosecutes  this  appeal,  and  raises  the  question, 
first,  upon  the  pleadings,  that  the  facts  constituting  contrib- 
utory negligence,  which  it  pleaded,  were  not  denied,  and  there- 
fore no  verdict  or  judgment  should  have  been  rendered  in  ap- 
pellee's behalf. 

The  allegation  of  the  answer  is,  "that  the  plaintiff  had  full 
knowledge  of  such  defect,  and  with  his  eyes  wide  open,  and  in 
open  broad  daylight,  walked  into  said  hole,  and  by  his  own  neg- 
ligence contributed  to  said  injury,  and  thereby  he  alone  is  re- 
sponsible for  his  misfortune." 

To  this  the  appellee  replied,  that  "the  plaintiff,  Wm.  R. 
Wolfe,  for  reply  to  defendant's  answer,  denies  that  he  was 
guilty  of  any  negligence  at  or  before  the  time  of  the  injury  com- 
plained of  in  this  petition,  or  that  he  contributed  in  any  way 
by  his  negligence  to  the  occurrence  of  said  injury.  He  denies 
that  defendant  is  relieved  from  responsibility  for  their  gross 
and  M'illful  neglect  by  reason  of  any  negligence  on  the  part  of 
the  plaintiff. " 

It  is  contended  by  counsel  that  the  reply  fails  to  deny  the 
substantive  facts^  constituting  contributory  negligence,  and  only 

1  amitli,  P.  J.,  in  Carpenter  v.  worthless,  and  that  the  acts  which 
McDavitt,  53  Mo.  App.  393,  (1893):  it  is  intended  to  be  shown  were 
*  *  *  "In  Gurley  v.  Kailroad,  negligently  done  shonld  be  set  out 
93  Mo.  445,  it  was  stated  that  a  with  a  reasonable  degree  of  par- 
petition  which  states  generally  ticularity  and  in  some  appropriate 
that  plaintiff  was  injured  by  the  form  of  expression  charged  to  have 
negligence  of  defendant  would  be  been  negligently  done.     And  sim- 


302  The  Complaint.  [Chap.  III. 

traverses  the  averment  of  negligence,  which  is  but  denying  a 
legal  conclusion. 

The  error  in  this  position  lies  in  the  assumption  that  the 
allegation  of  negligence  is  a  mere  legal  conclusion,  and  that  the 
supposed  substantive  facts  constitute  contributory  negligence, 
neither  of  which  is  true. 

Negligence  is  the  ultimate  fact  to  be  pleaded,  and  it  forms 
part  of  the  act  from  which  the  injury  arises,  or  by  which  con- 
tributory negligence  is  made  out.  It  is  the  absence  of  care  in 
the  performance  of  an  act,  and  is  not  merely  the  result  of  such 
absence,  but  the  absence  itself,  and  it  is  not,  therefore,  a  mere 
conclusion  of  law,  and  may  be  pleaded  generally.  Although  the 
appellee,  with  his  eyes  open  and  in  broad  daylight,  walked  into 
the  ''hole,"  these  facts  alone  would  not  constitute  neglect,  but 
if  done  intentionally  or  negligently  they  would  do  so.  Nor  does 
the  fact  that  the  appellee  knew  the  "hole"  was  in  the  "floor," 
when  added  to  those  named,  constitute  negligence,  as  want  or  ab- 
sence of  care  must  be  averred  in  some  form,  as  it  is  one  of  the 
essential  facts  necessary  to  such  a  defense.^ 

The  issue  formed  by  the  reply  was  material.  (42  Iowa  378 ; 
34  Mo.  235;  14  N.  Y.  310;  Bliss  on  Code  Pleading,  sec. 
211.)     •    *    * 

Judgment  affirmed. 


OMAHA  &  R.  V.  RY.  CO.  v.  WRIGHT. 

Supreme  Court  of  Nebraska,  1896.    47  Neh.  886. 

Irvine,  C.  The  defendants  in  error  brought  this  action 
against  the  railway  company  to  recover  damages  on  account  of 
cattle  belonging  to  them,  killed  and  injured  by  a  train  of  the 
railway  company.  The  petition,  while  it  is  in  one  count,  really 
alleges  or  attempts  to  allege  three  grounds  of  recovery:     First, 

ilar    rulings    have    been    made    in  but  not  the  latter." 

other  cases.     *     *     *     These  cases  And   so  in   Cederson  v.   O.  R.  & 

make    a    distinction    between    the  N.  Co.,  38  Ore.  343,   (1900). 

acts  and  the  facts  constituting  the  2  For  another   view  of  negligence, 

negligence.      It    seems    that    it    is  see   Holmes,  Law  in   Science,   etc, 

necessary    to    set    out    the    former  12  Harvard  Law  Rev.,  443. 


Sec.  1.]  Facts  Constituting  the  Cause  op  Action.  303 

that  a  gate  on  one  of  the  fences  along  the  right  of  way  was 
insufficient,  and  negligently  permitted  to  be  out  of  repair,  and 
that,  by  reason  of  those  facts,  the  cattle  got  upon  the  right  of 
way;  second,  that  after  they  got  upon  the  right  of  way,  their 
injury  resulted  from  the  careless  operation  of  the  train;  third, 
that  the  railway  company,  after  the  stock  was  injured,  took 
possession  of  the  dead  bodies  and  the  injured  cattle,  and  refused 
to  permit  the  owner  to  retake  them, — that  is,  a  charge  of  con- 
version. The  answer  of  the  railway  company  was  a  series  of 
denials, — some  of  them  negatives  pregnant,  but  the  whole  effect 
practically  that  of  a  general  denial, — coupled  with  some  affinn- 
ative  allegations  in  regard  to  the  security  of  the  gate  and  neg- 
ligence on  the  part  of  the  plaintiffs.  From  a  verdict  and 
judgment  in  favor  of  the  plaintiffs  for  $569,  the  defendant 
prosecutes  error.    *    *    * 

It  is  quite  clear,  under  the  instructions  of  the  court,  that  the 
verdict  turned  upon  the  negligence  of  the  railway  company  in 
operating  its  train,  whereby  the  cattle  were  killed  and  injured 
after  they  came  upon  the  right  of  way.  On  this  branch  of  the 
case  the  allegations  of  the  petition  are  that  the  defendant,  "by 
its  agents  and  employees,  while  running  at  a  high  rate  of  speed, 
carelessly  and  negligently,  and  without  using  due  caution,  ran 
the  engine  and  train  of  cars  connected  therewith  and  attached 
thereto  over  and  upon  the  cattle  of  these  plaintiffs  j  *  *  * 
that  the  said  defendant  carelessly  and  negligently,  by  its  em- 
ployees and  servants,  in  operating  said  train,  ran  their  said 
engine  and  train  in,  over,  and  upon  said  plaintiffs'  stock,  when, 
by  exercising  proper  care  and  skill  in  the  management  and 
handling  of  its  engine  and  train,  it  could  have  stopped  said 
train  long  before  striking  said  plaintiffs'  stock."  An  allega- 
tion of  negligence  or  want  of  care  is  like  an  allegation  of  fraud. 
It  is  a  bare  conclusion.  A  pleading  is  not  sufficient  which  mere- 
ly in  general  terms  charges  a  want  of  due  care  or  negligence. 
It  is  necessary  to  plead  the  facts  from  which  an  inference  of 
negligence  arises.  Railroad  Co.  v.  Grablin,  38  Neb.  90  (56  N. 
W.  796),  and  (57  N.  W.  522)  ;  Malm  v.  Thelin,  47  Neb.  686,  66 
N.  "W.  650,    The  petition  merely  alleges  that  the  lefendant  neg- 


304  The  Complaint.  [Chap.  III. 

ligently  ran  over  the  stock,  while  by  the  use  of  proper  case  it 
might  have  stopped  the  train  before  striking  the  cattle. 

Judgment  reversed.^ 


CLARK  V.  C„  M.  &  ST.  P.  R.  R.  CO. 

Supreme  Court  of  Minnesota,  1881.    28  Minn.  69. 

Mitchell,  J.  This  is  an  appeal  from  an  order  sustaining  a 
demurrer  to  the  complaint.  The  ground  of  demurrer  was  that 
the  complaint  did  not  state  facts  sufficient  to  constitute  a  cause 
of  action.  The  here  material  allegations  of  the  complaint  are  as 
follows:  "That  on  the  6th  of  September,  1880,  the  servant  of 
the  plaintiff  was  lawfully  traveling  in  a  wagon  drawn  by  two 
horses,  all  the  property  of  the  plaintiff,  along  the  public  high- 
way in  the  town  of  Carlston,  in  the  county  of  Freeborn,  which 
public  highway  crosses  the  railroad  operated  by  said  defend- 
ants near  the  section  line  between  sections  29  and  32  in  said 
township ;  that  as  said  servant  of  this  plaintiff  reached  said 
crossing  the  defendants  herein,  by  the  culpable  carelessness,  neg- 
ligence, unskillfulness  and  mismanagement  of  said  defendants 
and  their  employees,  wrongfully  run  a  locomotive,  with  a  train 
of  cars  thereto  attached,  used  and  employed  by  defendants  in 
operating  said  road,  against  plaintiff's  said  horses,  and  threw 
them  down,  killing  one  of  them  immediately,  and  so  severely  in- 
juring the  other  as  to  render  him  practically  worthless." 

It  is  urged  that  it  is  not  sufficient  to  allege  that  an  act  was 
done  negligently  or  carelessly;  that  this  is  merely  a  conclusion 
of  law,  and  not  a  statement  of  an  issuable  fact ;  that  the  physical 

S  On  rehearing,  49  Neb.  456,  this  dence  of  any  act  or   omission  not 

opinion  was   disapproved,   and   the  v/ithin  some  of  such  specifications 

rule   stated   as   follows:      "That   a  is  irrelevent." 

general  allegation  of  negligence  is  Compare  Vinje,  J.,  in  Emond  v. 

good  against  a  demurrer;   and  un-  Kimberly,    159    Wis.    83,     (1914): 

der  such  an  allegation  evidence  of  *       *  *     ar^Q  allege  that  a  thing 

any  fact  which  contributed  to  the  is   unsafe   without   specifying   how 

injury  sued   for  is   competent   and  or  why  it  is  unsafe  is  tantamount 

relevant,  but   where   a  pleader   re-  to   an   allegation   that   a  person   is 

lies  upon  one  or  more  specific  acts  negligent  without  stating  the  factg 

or  omissions  as  negligent,  then  evi'  constituting  the  negligence.'- 


Sec.  1.]  Facts  Constituting  the  Cause  of  Action.  305 

facts  constituting  the  negligence  must  be  alleged.  It  is,  of 
course,  an  elementary  rule  of  pleading  that  facts,  and  not  mere 
conclusions  of  law,  are  to  be  pleaded.  But  this  rule  does  not 
limit  the  pleader  to  the  statement  of  pure  matters  of  fact  un- 
mixed with  any  matter  of  law.  When  a  pleader  alleges  title 
to  or  ownership  of  property,  or  the  execution  of  a  deed  in  the 
usual  form,  these  are  not  statements  of  pure  facts.  They  are 
all  conclusions  from  certain  probative  or  evidential  facts  not 
stated.  They  are  in  part  conclusions  of  law  and  in  part  state- 
ments of  facts,  or  rather  the  ultimate  facts  drawn  from  these 
probative  or  evidential  facts  not  stated;  yet,  these  forms  are  uni- 
versally held  to  be  good  pleading.  Some  latitude  therefore  must 
be  given  to  the  term  ''facts"  when  used  in  a  rule  of  pleading. 
It  must  of  necessity  include  many  allegations  which  are  mixed* 
conclusions  of  law  and  statements  of  facts,  otherwise  pleadings 
would  become  intolerably  prolix,  and  mere  statements  of  the 
evidence.  Hence,  it  has  become  a  rule  of  pleading  that  while 
it  is  not  allowable  to  allege  a  mere  conclusion  of  law  containing 
no  element  of  fact,  yet  it  is  proper,  not  only  to  plead  the  ulti- 
mate fact  inferable  from  certain  other  facts,  but  also  to  plead 
anything  which,  according  to  the  common  and  ordinary  use  of 
language,  amounts  to  a  mixed  statement  of  facts,  and  of  a  legal 
conclusion.  It  may  not  be  possible  to  formulate  a  definition 
that  will  always  describe  what  is  a  mere  conclusion  of  law,  so 
as  to  distinguish  it  from  a  pleadable,  ultimate  fact,  or  that  will 
define  how  great  an  infusion  of  conclusions  of  law  will  be  al- 
lowed to  enter  into  the  composition  of  a  pleadable  fact.  Prec- 
edent and  analogy  are  our  only  guides.    And  it  is  undoubtedly 

4"A  difificulty  in  distinguishing  of  the  use  of  language.  For  ex- 
between  propositions  or  questions  ample,  the  proposition  that  A  and 
of  law  and  of  fact  occurs  in  two  B  are  partners  includes  in  a  con- 
classes  of  cases;  and  first,  in  what  densed  form  the  statement  of  fact 
are  correctly  called  mixed  proposi-  that  they  have  done  certain  acts, 
tions  or  questions.  Such  a  proposi-  such  as  making  a  written  agree- 
tion  arises  when  two  or  more  dis-  meat  in  certain  terms,  and  the 
tinct  and  separate  propositions  of  statement  of  law  that  the  legal 
different  characters  are  combined  effect  of  those  acts  is  to  put  them 
in  one  expression,  and  yet  each  into  the  condition  of  being  part- 
one   is    capable    of   being   detected  ners. " 

by  analysis  and  separately  stated.  Terrj^,      Anglo-American      Law, 

The  mixture  is  caused  entirely  by  §   66: 
abbreviation;   it  is  a  mere  matter 


306  The  Complaint.  [Chap.  III. 

true  that  there  will  be  found  a  want  of  entire  judicial  harmony 
in  the  adjudicated  cases  as  to  what  are  statements  of  fact  and 
what  are  mere  conclusions  of  law.  And  in  holding  one  class  of 
inferences  as  facts  to  be  pleaded,  and  another  as  conclusions  of 
law  to  be  avoided,  courts  may  have  been  often  governed  more 
by  precedent  than  by  a  substantial  difference  in  principle.  But 
it  has  been  quite  generally  held  that  the  question  of  negligence 
in  a  particular  case  is  one  of  mingled  law  and  fact;  that  when 
we  speak  of  an  act  as  negligent  or  careless,  according  to  the  com- 
mon use  of  language,  we  state,  not  simply  a  conclusion  of  law, 
but  likewise  state  an  ultimate  fact  inferable  from  certain  other 
facts  not  stated. 

Therefore,  it  has  been  generally  settled  by  precedent  and 
authority  that  a  general  allegation  of  negligence  or  carelessness, 
as  applied  to  the  act  of  a  party,  is  not  a  mere  conclusion  of  law, 
but  is  a  statement  of  an  ultimate  fact  allowed  to  be  pleaded. 
Such  a  general  form  of  alleging  negligence,  seems  to  have  been 
permissible  in  common  law  pleading.  Some  of  the  forms  of 
declarations  given  by  Chitty,  when  stripped  of  mere  superfluous 
verbiage,  amount  to  nothing  more  than  this.  See  2  Chitty  on 
Pleading,  650;  also  Bliss  on  Code  Pleading,  §  211;  Grinde  v. 
C,  M.  &  St.  P.  R.  R.  Co.,  42  Iowa  377;  Oldfleld  v.  N.  Y.  &  H. 
R.  R.  Co.,  14  N.  Y.  310. 

Therefore,  while  the  court  on  motion  would,  on  proper  show- 
ing, doubtless  have  the  right  to  require  this  complaint  to  be 
made  more  definite,  yet  we  think  it  was  not  demurrable  on  the 
grounds  stated. 

Another  objection  made  to  this  complaint  is  that  from  the 
facts  stated  it  appears  that  plaintiff  himself  was  guilty  of  con- 
tributory negligence.  It  is  the  settled  law  of  this  state  that 
contributory  negligence  of  the  plaintiff  is  matter  of  defense,  and 
that  plaintiff,  in  making  out  his  case,  need  not  prove  the  absence 
of  it.    Wilson  V.  N.  P.  R.  R.  Co.,  26  Minn.  298. 

Hence  it  is  not  necessary  for  the  plaintiff  in  his  complaint  to 
negative  the  existence  of  contributory  negligence  on  his  part. 
It  is,  however,  doubtless  true  that  if  his  complaint  stated  facts 
which  showed  affirmatively  that  he  was  guilty  of  negligence 
which  contributed  to  the  injury,  the  complaint  would  be  demur- 
rable. But  this  complaint  is  not  liable  to  any  such  objection; 
it  alleges  that  his  team  was  lawfully  travelling  along  the  high- 
way at  the  time  and  place  when  and  where  the  accident  occurred. 


Sec.  1.]  Facts  Constituting  the  Cause  op  Action,  307 

It  did  not  allege  that  his  servant  did  not  look  out  for  approach- 
ing trains,  nor  does  it  appear  from  the  facts  stated  that  he  could 
have  seen  it  if  he  had  looked,  so  as  to  raise  a  presumption  that 
he  failed  to  look.  The  remark  made  by  this  court  in  Bro\ra  v. 
Railroad  Co.,  22  Minn.  168,  quoted  by  counsel,  was  made  with 
reference  to  the  facts  and  circumstances  of  that  case  as  undis- 
putably  disclosed  by  the  evidence. 

Ordered  reversed. 


DAVIS  V.  HOUGHTELIN. 

Supreme  Court  of  Nehrasha,  1891.    33  Neh.  582. 

NoRVAL,  J.^  This  is  a  proceeding  in  error  to  reverse  the  judg- 
ment of  the  district  court  of  Jefferson  county,  sustaining  a  gen- 
eral demurrer  to  the  petition  of  the  plaintiff,  and  dismissing  the 
action.    *    *    * 

This  is  an  action  to  recover  damages  for  the  killing  of  plain- 
tiff's intestate  by  one  Allen  Ireland,  who,  it  is  alleged,  was  at 
the  time  in  the  defendants'  employ.  The  general  principle  that 
a  master  is  liable  for  injuries  to  third  persons  resulting  from  the 
negligence  of  the  servant  while  in  the  line  of  his  employment  is 
familiar.  It  is  equally  well  settled  that  a  master  is  not  responsi- 
ble for  the  wilful  and  tortious  act  of  his  servant  committed  out- 
side of  the  scope  of  his  employment.  Miller  v.  Railroad  Co.,  8 
Neb.  219 ;  Tuller  v.  Voght,  13  111.  277 ;  Oxford  v.  Peter,  28  111. 
434;  Moir  v.  Hopkins,  16  111.  313;  De  Camp  v.  Railroad  Co.,  12 
Iowa  348 ;  Cooke  v.  Railroad  Co.,  30  Iowa  203 ;  Carter  v.  Rail- 
way Co.,  98  Ind.  552 ;  Gravel  Road  Co.  v.  Cause,  76  Ind.  142 ; 
Meehan  v.  Morewood,  (Sup.)  5  N.  Y.  Supp.  710;  Lafifitte  v.  Rail- 
road Co.,  (La.)  8  South.  Rep.  701;  Fraser  v.  Freeman,  43  N.  Y. 
566 ;  Cooley,  Torts,  533  et  seq. 

The  sufficiency  of  the  petition,  therefore,  depends  upon 
whether  it  charges  that  the  act  of  killing  Davis  was  done  in  the 
prosecution  of  the  defendants'  business,  and  within  the  range  of 
the  servant's  employment.  The  third  paragraph  of  the  petition 
charges  that  Allen  Ireland  was  employed  by  the  defendants  to 

6  Part  of  opinion  onaitted. 


308  The  Complaint.  [Chap.  III. 

guard  certain  feed  belonging  to  them  upon  their  premises,  and 
to  seize  and  detain  persons  who  might  be  found  disturbing  such 
feed.     This  is  the  only  allegation  of  fact  in  the  entire  pleading 
relating  to  the  nature  and  scope  of  Ireland's  employment.    As  to 
the  act  of  killing,  it  is  averred,  in  effect,  that  the  deceased  had 
occasion  to  be  upon  defendants'  premises,  and  while  so  there, 
said  Ireland,  in  attempting  to  seize  and  detain  said  Davis,  neg- 
ligently, carelessly,  and  unlawfully  shot  and  killed  him.     There 
is  no  allegation  that  Davis  was  molesting  the  feed,  or  attempting 
so  to  do,  or  that  it  was  any  part  of  Ireland's  duty^  to  seize  and 
arrest  persons  who  happened  to  be  upon  the  premises,  except 
those  who  were  there  for  a  specified  purpose.    It  is  obvious  that 
the  averment  in  the  fourth  paragraph  of  the  petition,  that  Ire- 
land "was  acting  for  said  defendants  in  the  due  course  of  his 
employment  as  aforesaid,  and,  pursuant  to  his  instructions  and 
orders,  attempted  to  seize  and  detain, "  is  a  mere  conclusion,  and 
not  a  statement  of  any  fact,  showing  that  the  attempted  seizure 
and  detention  of  Davis  was  within  the  range  and  authority  of 
Ireland 's  duties.    Likewise  the  allegation  in  the  fifth  paragraph, 
that  Davis'  death  "was  caused  by  the  wrongful  and  unlawful 
act,  neglect,  and  default  of  said  defendants,"  is  the  statement 
of  a  conclusion  of  law,  which  the  demurrer  does  not  admit.     It 
is  only  facts  that  are  well  pleaded  which  are  confessed  by  gen- 
eral demurrer.     So  far  as  the  allegations  in  the  petition  are 
concerned,  or  the  legitimate  inferences  to  be  draAvn  therefrom, 
Ireland's  employment  was  exclusively  in  guarding  and  protect- 
ing the  feed,  and  the  wrong  charged  was  something  which  his 
agency  did  not  contemplate,  and  which  he  could  not  lawfully  do 
in  the  name  of  the  defendants.     His  business  no  more  contem- 
plated the  seizure  of  a  person  who  was  upon  the  defendants' 
premises  for  a  lawful  purpose  than  it  did  the  arrest  and  deten- 

6  Gillett,    J.,    in    Ry.    v.    Light-  quired   to   do,   as   that   one    of  the 

heiser,      163      Ind.      247,      (1901):  duties     which     plaintiff     was     em- 

*      *      *      "There     are     instances  ployed  to  perform  was  to  inspect, 

where    the    word    'duty'    may    be  etc." 

used   in   a   pleading,   although   per-  Compare    Jones    v.    Van    Bever, 

haps    not    with    the    utmost    pro-  164  Ky.  80,   (1915);  L.  R.  A.  1915 

priety  in  characterizing  the  nature  E.    172,   that   in   an   action   against 

of   the   plaintiff's    employment,    as  a  sheriff  a  general  allegation  that 

where  the  word  is  used  as  descrip-  his   deputy   made   an   arrest  in   his 

tive  of  an  ultimate  fact  as  to  the  official   capacity  is  a  mere  conclu- 

character   of  the  work   he  was  re-  sion.                          » 


Sec.  1.]    Facts  Constituting  the  Cause  of  Action.  309 

tion  of  a  person  lawfully  passing  along  the  public  highway  near 
the  property,  and  in  neither  case  would  the  defendants  be  liable 
for  the  act.  The  test  of  a  master's  liability  is  not  whether  a 
given  act  was  done  during  the  existence  of  the  servant's  employ- 
ment but  whether  it  was  committed  in  the  prosecution  of  the 
master's  business.    •    *    * 

Judgment  affirmed. 


II.    The  Facts  to  be  Stated} 
HILL  V.  BARRETT. 

Court  of  Appeals  of  Kentucky,  1853.     14  B.  Monroe  83. 

Judge  Marshall  delivered  the  opinion  of  the  court. 

This  is  an  action  by  petition  under  the  code,  in  which  the 
plaintiff  seeks  to  recover  the  value  of  certain  brick  alleged  to 
have  been  made  by  him  on  the  premises  of  the  defendants. 
From  the  written  contract  referred  to  and  filed  as  a  part  of  the 
petition,  and  which  is  thus  made  a  part  of  the  record,  it  appears 
that  Hill  undertook  to  make,  burn,  and  lay  for  the  defendants, 
two  hundred  thousand  merchantable  bricks,  at  such  place  as 
said  defendants  may  designate  at  the  Grayson  Springs,  the  plain- 
tiffs furnishing  all  the  materials,  boarding,  etc.,  for  which  the 
defendants  agreed  to  pay  him  seven  dollars  and  fifty  cents  per 
thousand,  not  counting  the  openings  in  the  buildings,  to  be  paid 
in  one,  two  and  three  years,  except  one  hundred  dollars,  to  be 
taken  out  in  boarding  at  the  springs.  But  it  is  provided  that 
the  defendant  have  the  privilege  of  not  putting  up  said  build- 
ings the  next  spring  if  they  choose,  in  which  event  they  were  to 

1  Two  distinct  problems  arise  in  liability.     (2)   How  far  the  allega- 

this  connection:      (1)  What  allega-  tions   must   conform   to  the   actual 

tions   are   necessary   in    any   given  facts  in  order  to  escape   objection 

case    to    make    the    pleading    good  for  variance? 

on  its   face?     The  solution  of  this  Some     phases     of    this     problem 

problem   primarily  involves   a   cor-  have    already    been    treated    in    a 

rect    analysis    of    the    substantive  former    section    dealing    with    the 

law  involved  which  determines  the  "One  form  of  Action."     Ed. 
elements    essential    to    any    given 


310  The  Complaint.  [Chap,  III. 

pay  the  plaintiff  four  dollars  and  fifty  cents  per  thousand  (kiln 
count),  in  the  manner  and  times  above  stated;  and  Hill  bound 
himself  to  complete  said  building,  or  laying  of  said  brick,  on  or 
before  the  first  day  of  the  next  June,  provided  said  defendants 
notify  him  by  the  first  day  of  the  next  March,  of  their  intention 
to  have  said  brick  laid  the  next  spring.  But  the  defendants 
undertook  to  build  the  foundation  on  which  the  said  bricks  were 
to  be  laid,  in  time  for  laying  the  brick  the  next  spring,  provided 
they  elect  to  build. 

The  plaintiff,  without  setting  out  any  part  of  this  agreement 
in  the  petition,  but  stating  that  one  was  entered  into  by  the  par- 
ties, in  August,  1849,  avers,  that  after  its  date,  he  made  and 
burnt  on  the  premises  of  the  defendants,  in  the  year  1849,  one 
hundred  and  seventy  thousand  merchantable  bricks;  that  they 
were  not  laid  and  put  into  a  house,  because  the  defendants  did 
not  notify  him  that  they  intended  to  have  the  building  put  up, 
and  did  not  have  the  foundation  laid  in  time  for  him  to  build 
the  said  house  by  the  first  day  of  June,  1850,  or  any  other  time, 
but  they  elected  that  they  would  not  build  said  house,  whereby 
he  was  prevented  from  making  and  laying  the  two  hundred 
thousand  bricks  contracted  for;  and  he  claims  payment  for  the 
one  hundred  and  seventy  thousand  bricks  at  the  rate  of  four 
dollars  and  fifty  cents,  kiln  count.  A  demurrer  to  this  petition 
was  sustained,  and  judgment  having  been  rendered  against  the 
plaintiff,  he  brings  the  case  to  this  court  for  revision. 

Although  the  code  of  practice  has  abolished  not  oiily  the  pre- 
existing forms  of  action,  but  also  the  pre-existing  forms  of  plead- 
ing, and  has  declared,  that  henceforth,  the  forms  of  pleading, 
and  the  rules  by  which  their  sufficiency  is  to  be  determined,  are 
those  prescribed  in  the  code  itself;  it  adopts  what  has  always 
been  a  cardinal  rule  with  respect  to  the  allegations  of  the  plain- 
tiff, now  called  the  petition,  that  it  must  contain  a  statement  of 
the  facts  constituting  the  plaintiff's  cause  of  action,  with  scarce- 
ly any  other  specific  requisition,  but  that  it  be  made  in  ordinary 
and  concise  language,  without  repetition.  Title  7,  chapter  1, 
section  144,  p.  30,  31.  But  while  the  code  contains  a  very  few 
additional  rules  with  respect  to  the  mode  or  manner  of  alleging 
the  facts  relied  on  as  constituting  a  cause  of  action,  it  does  not, 
and  could  not,  particularize  the  facts  necessary  to  be  stated,  nor 
give  any  affirmative  rule  more  special  or  more  instructive  than 
that  which  requires  that  the  petition  shall  contain  the  facts  con- 


Sec.  1.]   Facts  Constituting  the  Cause  of  Action.  311 

stitutiug  the  plaintiff's  cause  of  action.     The  code  makes  no 
change  in  the  law  which   determines  what  facts  constitute   a 
cause  of  action,  except  that  by  reducing  all  the  forms  of  action 
to  the  single  one  by  petition,  it  changes  the  question  whether 
the  plaintiff's  statement  of  his  cause  shows  facts  constituting  a 
cause  of  action  in  trespass,  or  assumpsit,  or  other  particular 
form,  into  the  more  general  question,  whether  it  shows  facts 
which  constitute  a  cause  of  action  at  all,  that  is,  whether  the 
facts  stated  are  sufficient  to  show  a  right  in  the  plaintiff,  an  in- 
jury to  that  right  by  the  defendant,  and  consequent  damage. 
What  facts  do  in  this  sense,  constitute  a  cause  of  action,  is  de- 
termined by  the  general  rules  or  principles  of  law  respecting 
rights  and  wrongs,  and  by  a  long  course  of  adjudication  and 
practice,  applying  those  rules  to  particular  actions,  under  the 
long   established  rule  of  pleading,   that  the   declaration   must 
state  the  facts  which  constitute  the  plaintiff's  cause  of  action. 
In  adopting  this  fundamental  rule  of  pleading,  the  code  must 
be  considered  as  adopting  also  the  prevailing  and  authoritative 
exposition  of  it  as  understood  at  the  time,  except  so  far  as  the 
code  itself,   either  expressly,  or  by  necessary  implication,   re- 
quires facts  to  be  stated  which  need  not  before  have  been  stated, 
or  dispenses  with  the  statement  of  facts  formerly  deemed  nec- 
essary. 

The  express  dispensations  apply  rather  to  the  form  of  state- 
ment than  to  the  facts  to  be  stated.  They  are  to  be  found  prin- 
cipally in  chapter  7,  of  the  title  heretofore  referred  to,  in  sec- 
tions 175,  and  176,  page  36:  The  implied  dispensations  grow 
mainly  out  of  the  reduction  of  all  actions  to  one  form.  The 
requisition  of  additional  facts  may  be  implied  from  the  abolition 
of  that  rule  which  had  formerly  made  it  sufficient,  and  indeed, 
proper,  to  state  facts  according  to  their  legal  effect,  instead  of 
stating  them  as  they  actually  occurred,  which  the  code  seems  to 
require  by  the  rule  that  they  shall  be  stated  in  ordinary  lan- 
guage. The  code  does  not  authorize  a  recovery  upon  a  statement 
of  facts  which  did  not  constitute  a  cause  of  action  in  some  form, 
before  the  code  was  adopted.  And,  therefore,  the  former  prec- 
edents, and  rules,  and  adjudications,  may  now  be  resorted  to  as 
authoritative,  except  so  far  as  they  relate  to  the  distinctions  be- 
tween the  different  forms  of  actions,  or  to  merely  formal  or  tech- 
nical allegations,  and  except  so  far  as  particular  allegations 
formerly  deemed  substantial  are  dispensed  with,  or  so  far  as 


312  The  Complaint.  [Chap.  III. 

particular  allegations  may  now  be  necessary  where  allegations, 
according  to  the  legal  effect  of  the  facts,  may  formerly  have  been 
sufficient. 

Under  this  view  of  the  present  law  of  pleading,  we  are  of 
opinion,  that  the  petition  in  this  case  is  defective  in  not  stating 
either  in  terms  or  in  substance  the  contract  for  a  breach  of 
which  the  action  is  brought.  It  is  not  sufficient  to  state  that  on 
a  named  day  the  plaintiff  and  the  defendants  entered  into  a  con- 
tract signed  by  them,  which  is  herewith  filed,  made  part  hereof, 
marked  A— that  the  plaintiff,  in  pursuance  of  the  contract,  did 
and  performed  certain  acts,  and  that  the  defendants  either  did 
or  failed  to  do  certain  acts  on  their  part  in  violation  of  the 
agreement.  The  rule  of  the  code  before  referred  to,  requires 
that  the  petition  shall  state  the  facts  constituting  the  cause  of 
action;  and,  although  in  another  section,  it  also  requires  that 
where  the  action  is  founded  on  a  writing,  the  writings  shall  be 
filed  as  a  part  of  the  petition,  which,  as  we  think,  implies  that 
it  shall  also  be  referred  to  in  the  petition,  there  is,  in  our  opin- 
ion, no  dispensation,  either  express  or  implied,  with  the  neces- 
sity of  stating  in  the  petition  so  much  of  the  contract  as  shows 
that  the  plaintiff,  by  reason  of  the  alleged  acts  or  omissions  on 
his  part,  and  of  those  on  the  part  of  the  defendants,  is  entitled 
to  an  action  and  to  relief.  The  petition  must  contain  in  its  own 
body,  and  not  merely  by  reference  to  another  paper,  a  state- 
ment of  the  facts  constituting  the  cause  of  action. 

But  if  the  petition  in  this  case  had  set  out  the  entire  contract, 
it  would  still  be  defective,  either  in  not  stating  that  the  one 
hundred  and  seventy  thousand  bricks,  for  which  payment  is 
demanded,  were  made  and  burnt  at  the  Grayson  Springs,  at  the 
place  designated  by  the  defendants,  if  they  did  designate  any, 
or  in  not  stating  that  the  defendants  had  accepted  the  bricks 
actually  made.  We  are  inclined  to  the  opinion  that  the  election 
of  the  defendants  not  to  build  in  the  spring,  1850,  was  a  dis- 
pensation with  further  performance  by  the  plaintiff,  which  en- 
titled him  to  be  paid,  according  to  the  price  stipulated  in  that 
event,  for  the  bricks  previously  made,  in  pursuance  of  the  con- 
tract. And  even  if  this  be  not  so,  the  plaintiff  was  entitled  to 
be  paid  for  his  work  and  materials  made  and  furnished  for  the 
use  of  the  defendants,  and  under  their  employment,  as  much  as 


Sec.  1.]    Facts  Constituting  the  Cause  of  Action.  313 

they  were  reasonably  worth, ^  provided  they  were  either  accepted 
by  the  defendants,  or  were  furnished  at  the  place  stipulated. 
But  as  the  plaintiff  has  not  averred,  and  could  not  have  averred, 
that  he  had  done  all  which  was  by  the  contract  to  be  done  on 
his  part,  he  should  have  shown  by  positive  statements  of  facts, 
that  what  he  did  do,  was  beneficial  to  the  defendants  in  the  man- 
ner contemplated  by  the  contract,  or  that  it  was  accepted  by 
them.  It  is  not  sufficient  to  say,  that  in  pursuance  of  the  agree- 
ment, he  made  and  burnt  one  hundred  and  seventy  thousand 
bricks  on  the  premises  of  the  defendants. 

Judgment  affit-med. 


CAPLES  V.  BRANHAM. 

Supreme  Court  of  Missouri,  1855.     20  Mo.  244. 

Action  by  Caples  and  others  against  Branham  on  a  subscrip- 
tion paper  to  recover  $100.    The  paper  was  in  those  words : 

"January  22d,  1833. 

"We,  the  undersigned,  agree  to  pay  the  amounts  affixed  to 
our  respective  names,  to  trustees  to  be  appointed  by  the  edu- 
cational convention  of  the  Methodist  Episcopal  church  south, 
for  the  "Western  district,  for  the  purpose  of  purchasing  grounds 
and  building  houses  suitable  for  one  or  more  high  schools,  with- 
in the  limits  of  Western  district ;  the  place  or  places  and  char- 
acter of  the  house  or  houses  to  be  determined  by  said  convention 
or  under  their  order  by  trustees  or  otherwise ;  one-half  to  be 
paid  on  the  first  day  of  June,  1853,  and  the  balance  on  the  first 
day  of  April,  1854." 

This  paper  was  subscribed  by  the  defendant  among  others, 
and  two  hundred  dollars  written  opposite  his  name. 

This  suit  was  brought  September  19,  1853,  to  recover  the  first 
instalment  of  the  amount  subscribed  by  the  defendant.  The 
petition  alleges  that  the  defendant,  by  the  above  writing,  prom- 
ised to  pay  the  sum  of  $200  "to  the  trustees  to  be  appointed," 

2  See      Eyerman      v.      Cemetery  performed  his  part  cannot  recover 

Asso'n,    61    Mo.    489,    ante    p.    44  the  reasonable  value  of  labor  and 

•     *     *,     that  in  an  action  on  the  materials,  but  must  frame  his  coni- 

contract    a    plaintiff   who    has    not  plaint   on  a   quantum  meruit. 


21 


314  The  Complaint.  [Chap,  III. 

&e.,  setting  forth  the  effect  of  the  instrument,  and  avers  that 
the  plaintiffs  are  the  trustees  appointed  by  the  educational  con- 
vention. No  consideration  for  the  promise  is  alleged,  other  than 
is  imported  in  the  words  of  the  instrument. 

A  demurrer  was  filed  and  the  following  causes  assigned : 
1.  That  there  was  a  defect  of  parties — there  being  no  prom- 
isees, either  natural  or  civil  persons.  2.  That  the  petition 
stated  no  consideration  for  the  promise. 

The  demurrer  was  overruled,  and  no  answer  being  filed,  a 
judgment  was  entered  for  the  plaintiffs,  from  which  the  de- 
fendant appeals. 

Scott,  Judge. — 1.  Bills  and  negotiable  promissory  notes,  by 
the  common  law,  imported  a  consideration.  Between  the  im- 
mediate parties  to  such  instruments,  the  consideration  might  be 
enquired  into  as  between  the  maker  and  promisee,  and  the 
drawer  and  the  acceptor.  All  other  contracts  not  under  seal,' 
whether  written  or  oral,  required  a  consideration.  In  1765, 
Mr.  Justice  Wilmot  was  strongly  of  the  opinion,  and  Lord  Mans- 
field apparently  so,  that  a  written  promise  not  under  seal,  car- 
rying with  it  the  evidence  of  deliberation,  required  no  considera- 
tion. Their  opinion  did  not  obtain.  There  is  no  difference  at 
common  law  between  an  oral  and  written  promise  not  under 
seal;  they  are  both  classed  under  the  head  of  simple  or  parol 
contracts. 

Our  legislature,  aware  that  men  are  not  apt  to  promise  to 
pay  money  without  a  sufficient  inducement  or  consideration, 
and  knowing  that,  in  most  instances,  a  consideration  exists  for 
promises,  has  changed  the  rule  of  the  common  law,  and,  at  an 
early  day,  made  all  notes  in  writing  executed  and  signed  by 
any  person  or  his  agent,  whereby  he  shall  promise  to  pay  to 
any  other  person,  or  his  order,  or  unto  bearer,  any  sum  of 
money  or  propert}^  therein  mentioned,  import  a  consideration. 

3<<It  has  been  often  said  that  a  mere  fact  of  its  formal  execution." 

seal  imports  a  consideration,  as  if  Ames,    Specialty    Contracts    and 

a    consideration   were    as    essential  Equitable     Defenses,     9     Harvard 

in   contracts  by   specialty   as   it  is  Law  Rev.  49. 

in  the  case  of  parol  promises.     But  The    code    has    not    changed    the 

it  is  hardly  necessary  to  point  out  rule  that  in  actions  on  specialties 

the    fallacy    of    this    viev7.      It    is  no   consideration   need    be    alleged, 

now  generally  agreed  that  the  spe-  Montgomery    v.    Auchley,    92    Mo. 

cialty   obligation,   like   the   Roman  126;     Considine     v.     Gallagher,    31 

stipulatio,  owes  its  validity  to  the  Wash.  669,   (1903). 


Sec.  1.]   Facts  Constituting  the  Cause  op  Action.  315 

The  object  of  this  provision  was,  to  place  notes  not  negotiable 
on  the  same  footing  occupied  by  negotiable  notes,  so  far  as  the 
matter  of  a  consideration  was  concerned.  Tlie  writing  showed 
deliberation,  and,  in  the  nature  of  things,  there  is  no  reason  why 
the  one  instrument  should  not  import  a  consideration  as  well 
as  the  other.  We  are  aware  that  the  credit  of  negotiable  paper 
is  sustained  by  considerations  of  commercial  policy.  The  law 
provided  for  one  class  of  promissory  notes.  The  statute  was 
designed  to  provide  for  all  others.  The  instrument  sued  on  is 
certainly  a  note  in  writing,  signed  by  a  party  promising  to  pay 
money.  There  is  no  form  prescribed  by  law  to  which  we  must 
adhere  in  the  making  of  a  promissory  note;  no  formal  words 
are  required.  If,  in  sense,  it  is  a  promise  in  writing  to  pay 
another  money  or  property,  it  is  a  promissory  note.  A  nego- 
tiable note,  payable  to  a  fictitious  person,  is  a  valid  instrument, 
and  may  be  declared  on  as  one  payable  to  bearer.    *    *     *. 

In  this  state,  ever  since  the  statute  of  1807,  which  allowed 
bonds  and  notes,  when  sued  on,  to  be  read  in  evidence,  unless 
their  execution  was  denied  under  oath,  it  has  been  held  that 
promissory  notes  imported  a  consideration,  and  that,  in  an  ac- 
tion on  them,  it  was  unnecessary  to  set  out  a  consideration*  in 
the  declaration.     (Rector  &  Conway  v.  Honore,  1  ]\Io.  Rep.  204.) 

Under  the  former  sj^stem  of  pleading,  there  would  be  an  ob- 
jection to  this  action,  on  the  ground  that  a  part  of  a  debt  due 
by  instalments,  was  sought  to  be  recovered  as  a  debt.  The 
money  here  sued  for  is  claimed  as  a  debt.  A  debt  is  not  divis- 
ible. Strictly,  this  action,  in  form,  should  have  been  for  dam- 
ages. The  objection,  however,  would  prol)ably  not  be  availaljle 
under  the  present  practice  act,  and  this  suggestion  is  made  lest 
it  should  be  thought  that  the  court  had  impliedly  overturned  a 
principle  which  may  have  application  on  occasions  not  arising 
in  pleading.  The  other  judges  concurring,  the  judgment  will 
be  affirmed, 

4  In    the    case    of    other    simple       cured    by    verdict,    Swift    v.    Fire 
contracts   a   failure   to   allege    con-       Ins.   Co.,   279   Mo.   606,    (1919). 
sideratiou   is    a    fatal   defect,   not 


316  The  Complaint.  [Chap.  III. 

JONES  V.  EWING. 

Supreme  Court  of  Minnesota,  1875.     22  Minn.  157. 

Defendant  mortgaged  certain  real  estate  to  plaintiff.  Tlie 
mortgage  contained  the  usual  power  of  sale,  and,  upon  default 
in  payment,  was  foreclosed  by  advertisement,  the  plahitiff  be- 
coming the  purchaser.  After  the  expiration  of  the  year  of  re- 
demption plaintiff  brought  this  action  for  unlawful  detainer, 
under  Gen.  St.  ch.  84,  to  recover  possession  of  the  premises  so 
mortgaged  and  sold  to  him.  The  justice  rendered  judgment  for 
plaintiff,  from  which  defendant  appealed.  The  appeal  was 
heard  in  the  district  court  for  Hennepin  county,  Vanderburgh, 
J.,  presiding,  and  judgment  rendered  for  defendant  on  the 
pleadings,  from  which  the  plaintiff  appeals.  The  objection  to 
the  complaint  is  that  in  setting  out  plaintiff's  title  it  fails  to 
state  that  no  action  had  been  brought,  before  the  foreclosure,  to 
recover  the  mortgage  debt,  etc, 

Cornell,  J.  To  entitle  any  party  to  give  notice  of  the  fore- 
closure of  a  real  estate  mortgage  by  advertisement,  and  to  make 
such  foreclosure,  the  statute  declares  that  "it  is  requisite" 
among  other  things,  "that  no  action  or  proceeding  has  been  in- 
stituted at  law  to  recover  the  debt  then  remaining  secured  by 
such  mortgage,  or  any  part  thereof;  or,  if  the  action  or  pro- 
ceeding has  been  instituted,  that  the  same  has  been  discontinued, 
or  that  an  execution  upon  the  judgment  rendered  therein  has 
been  returned  unsatisfied,  in  whole  or  in  part."  Gen.  St. 
ch.  81,  §  2. 

In  setting  up  a  title  acquired  under  such  foreclosure,  is  it  nec- 
essary, in  addition  to  the  other  essential  facts  showing  a  right 
to  give  the  notice  and  make  the  foreclosure,  that  the  pleading 
contain  an  averment  that  no  action  or  proceeding  has  been  in- 
stituted at  law  to  recover  the  debt  secured  by  the  mortgage,  or 
any  part  thereof;  or,  if  instituted,  that  the  same  has  been  dis- 
continued; or,  that  an  execution,  etc.,  has  been  returned,  un- 
satisfied, in  whole  or  in  part?  This  is  a  question  of  pleading, 
and  must  be  determined  by  the  rules  of  pleading.  If  a  com- 
plaint contain  a  distinct  statement  of  all  the  facts  which,  upon 
a  general  denial,  the  plaintiff  will  be  bound  to  prove,  in  the  first 
instance,  to  protect  himself  from  a  nonsuit,  and  to  show  himself 
entitled  to  a  judgment,  it  is  good  pleading.     It  is  sufficient  if 


Sec.  1.]   Facts  Constituting  the  Cause  of  Action.  317 

it  shows  a  prima  facie  right  in  the  plaintiff  to  recover,  and  it  is 
not  necessary  that  it  should  negative  a  possible  defense  (Moak's 
Van  Santvoord,  163;  Doughty  v.  Devlin,  1  E.  D.  Smith,  625, 
631),  or  state  matter  which  would  come  more  properly  from 
the  other  side.  Stephen  PI.  350.  These  are  general  and  ele- 
mentary rules  of  pleading,  applicable  as  well  under  the  code 
as  under  the  former  practice.  The  only  diflSculty  arises  in  their 
application  to  particular  cases. 

The  right  of  foreclosure  by  advertisement  rests  upon  the 
power  of  sale  contained  in  the  mortgage,  the  proper  record 
thereof,  and  of  its  assignments,  if  any,  and  the  further  fact  tliat 
such  power  has  become  operative  by  reason  of  some  default.  An 
action  or  proceeding  instituted  at  law  to  recover  the  mortgage 
debt  has  the  effect  of  suspending,  for  the  time,  the  exercise  of 
the  right;  but  its  non-existence^  can  hardly  be  said  to  give  or 
create  the  right.  The  mortgagee  or  his  assignee,  in  whom,  at 
the  time,  is  vested  the  power  of  sale,  is  the  proper  party,  and  the 
only  one  legally  competent,  to  exercise  the  right  by  an  execution 
of  the  power;  and  when  nothing  is  suggested  upon  the  record 
going  to  show  its  suspension  by  reason  of  a  suit  commenced,  or 
the  existence  of  some  disability  preventing  the  party  from  act- 
ing, it  must  be  presumed  that  he  acted  rightfully.  If  any  such 
fact  is  claimed  to  exist,  it  is  a  matter  more  properly  coming 
from  the  other  side,  and  should  be  set  up  in  the  answer. 

Judgment  reversed. 


TOOKER  V.  ARNOUX. 

Court  of  Appeals  of  New  York,  1879.     76  N.  T.  397. 

Appeal  from  jifdgment  of  the  General  Term  of  the  Court  of 
Common  Pleas,  in  and  for  the  city  and  county  of  New  York, 

6  See    also    Stoebe    v.    Fehl,    22  cipal   corporation   Avhere   a   statute 

Wis.  337,  to  the  effect  that  in  an  requires   a   notice   of   the   claim   to 

action    by    the    vendee    of    a    life  be    given    to    the    city,    Winter    v. 

tenant,  the  death  of  the  life  tenant  Niagara    Falls,     190     N.    Y.     198, 

need  not  be  negatived.  (1907). 

Compare  action  against  a  muni- 


318  The  Complaint.  [Chap.  III. 

affirming   a   judgment  in   favor   of  plaintiff,    entered   upon   a 

verdict. 

The  facts  alleged  in  the  complaint  were  as  follows: 
"First.— That  on  or  about  the  25th  day  of  July,  1872,  at  the 

city  of  New  York,  James  Watson  made  and  delivered  to  the 

plaintiff  for  value  his  certain  draft  or  order,  in  the  words  and 

figures  following: 

"New  York,  July  25,  1872. 
"William  Henry  Arnoux: 

"Dear  Sir — Please  pay  to  William  T.  Tooker  the  sum  of  five 
hundred  and  fifty-six  (556)  dollars,  out  of  the  money  to  be 
realized  from  the  sale  of  the  houses  on  the  north  side  of  46th 
street.  City  of  New  York,  and  known  as  Nos.  305,  307  and  309, 
East  46th  street. 

"James  Watson." 

"Second. — That  thereafter,  and  on  or  about  said  day,  the 
plaintiff  presented  said  draft  or  order  to  said  Arnoux,  who 
thereupon  for  value  duly  accepted  the  same." 

"Third.— That  on  the  6th  day  of  August,  1872,  said  Arnoux 
paid  on  account  thereof  one  hundred  dollars,  and  there  is  now 
due  on  said  draft  or  order,  from  the  defendant,  the  sum  of  four 
hundred  and  fifty-six  dollars,  with  interest  from  said  25th  day 
of  July,  1872." 

And  judgment  was  asked  for  that  amount. 

The  answer  admitted  the  acceptance  of  the  order,  the  payment 
of  $100,  but  denied  that  there  was  any  money  realized  from  the 
sale  of  the  houses,  or  that  there  was  due  plaintiff  the  sum 
claimed. 

At  the  beginning  of  the  trial,  defendant's  counsel  moved  to 
dismiss  the  complaint  on  the  ground  that  it  did  not  state  facts 
sufficient  to  constitute  a  cause  of  action.  The  motion  was  denied, 
and  said  counsel  duly  excepted.  Plaintiff  offered  evidence  of  the 
sale  of  the  houses  specified  in  the  order.  This  was  objected  to 
by  defendant's  counsel  on  the  ground  that  this  was  not  averred 
in  the  complaint.  No  application  was  made  for  an  amendment 
of  the  complaint. 

The  court  directed  a  verdict  for  plaintiff,  which  was  rendered 
accordingly, 

Rapallo,  J.  At  the  opening  of  the  trial  the  defendant  moved 
to  dismiss  the  complaint  on  the  ground  that  it  did  not  state  facts 
sufficient  to  constitute  a  cause  of  action.    The  motion  was  denied 


Sec.  1.]    Facts  Constituting  the  Cause  of  Action.  319 

and  exception  taken.  The  reason  assigned  was  that  the  defend- 
ant should  have  demurred. 

This  position  is  in  conflict  with  section  148  of  the  Code  and 
with  many  decisions  of  this  court.  If  the  complaint  was  bad  in 
substance  the  objection  was  available  on  the  trial  and  the  motion 
to  dismiss  should  have  been  granted.  (Schofield  v.  Whitelegge, 
49  N.  Y.  259;  Coffin  v.  Reynolds,  37  id.  640;  Emery  v.  Pease,  20 
id.  62.) 

We  think  the  complaint  was  clearly  bad.  The  sale  of  the 
houses  mentioned  in  the  order  and  the  receipt  of  money  from 
such  sale  were  conditions  precedent^  to  the  defendant's  liability 
on  his  acceptance,  and  those  facts  should  have  been  averred.' 
In  the  absence  of  such  averments  no  indebtedness  on  his  part  to 
the  plaintiff  appeared.  (Hunger  v.  Shannon,  61  N.  Y.  251, 
260.) 

The  denial  in  the  answer  of  the  receipt  of  any  such  moneys  did 
not  supplement  the  complaint  in  this  respect.  In  Bate  v. 
Graham  (11  N.  Y.  237)  the  answer  contained  an  affirmative  al- 
legation of  the  fact  which  the  complaint  should  have  averred, 
but  in  Schofield  v.  Whitelegge,  as  in  the  present  case  the  answer 
contained  a  denial  of  the  essential  fact,  and  it  was  held  that 
such  denial  did  not  cure  the  defect  in  the  complaint. 

The  complaint  in  the  present  case  cannot  be  sustained  by  vir- 
tue of  section  162  of  the  Code,  which  provided  that  in  an  action 

6  start,  C.  J.,  in  Eoot  v.  Childs,  the    nature    of   a    condition   subse- 

68    Minn.    142,    (1897):      *      »      *  quent,   and   it   is   not   necessary  to 

"Where  the  obligation  of  a  party  allege    in    the    complaint    the    non- 

to  a  contract  is  to  pay  only  upon  happening    or    noncontinuance     of 

the    happening    of    a    contingency,  the  contingency.     1  Chit.  PI.  320." 

6.   g.  the  return   of  an  instrument  »     *     * 

duly  recorded,  such  contingency  is  7  "In  pleading  the  performance 

in  the  nature   of  a   condition   pre-  of  a  condition  precedent  in  a  con- 

cedent,  and  its  occurrence  must  be  tract,  it  is  not  necessary  to   state 

alleged   in  the   complaint.     Wilson  the  facts  constituting  performance; 

V.    Clarke,    20    Minn.    318     (367).  but  the  party  may  state,  generally. 

But,  if  payment  is  not  to  be  made  that   he,    or   the    person    whom    he 

if    a    contingency   happens    during  represents,  duly  performed  all  the 

its  continuance,  e.  g.  if  the  party  conditions    on    his    part.      If    that 

is  enjoined  from  using  the  acticle  allegation  is  controverted,  he  must, 

which  is  the  subject  matter  of  the  on    the    trial,    establish     perform- 

contract,    he    is    not    to    pay    the  ance."      N.    Y.     Code    Civ.    Proc. 

purchase  price  until  the  injunction  §  533. 
is  dissolved,  the  contingency  is  in 


320  The  Complaint.  [Chap.  III. 

upon  an  instrument  for  the  payment  of  money  only,  it  should  be 
sufficient  to  set  forth  a  copy  of  the  instrument  and  allege  the 
amount  due  thereon.  It  was  decided  by  this  court  in  Conkling 
V.  Gandall  (1  Keyes  231),  that  section  162  was  not  applicable 
where  the  liability  of  the  defendant  was  conditional,  and  de- 
pended upon  facts  outside  of  the  instrument;  that  in  such  a 
case  the  facts  must  be  averred. 

The  objection  to  the  complaint  was  not  waived  upon  the  trial. 
The  defendant  not  only  took  the  objection  of  the  insufficiency  of 
the  complaint  before  any  evidence  was  taken,  but  when  the 
plaintiff  offered  evidence  of  the  fact  that  the  houses  had  been 
sold,  he  objected  to  such  evidence  on  the  ground  that  the  fact 
had  not  been  alleged  in  pleading. 

We  see  no  ground  upon  which  this  case  can  be  distinguished 
from  the  numerous  cases  in  which  it  has  been  decided  that  a 
party  may  upon  the  trial  lawfully  demand  a  dismissal  of  the 
complaint  on  the  ground  that  it  does  not  state  facts  sufficient  to 
constitute  a  cause  of  action. 

The  court  below  at  General  Term  conceded  that  if  the  trial 
judge  had  granted  the  motion  to  dismiss  it  would  have  been 
bound  to  sustain  his  action.  The  necessary  consequence  of  this 
concession  is  that  in  denying  the  motion  the  trial  judge  erred. 
It  was  not  a  question  of  discretion,  but  of  legal  right,  whether 
the  complaint  should  be  dismissed,  and  if  it  would  not  have  been 
error  to  grant  the  motion,  it  was  error  to  deny  it.  It  is  true 
that  an  amendment  of  the  complaint  might  have  been  allowed 
in  the  court  below,  but  no  amendment  was  made  or  asked  for, 
and  the  objection  to  the  complaint  having  been  taken  in  due 
season  and  overruled,  the  correctness  of  the  ruling  must  be 
tested  by  the  complaint  as  it  stood,  and  not  as  it  might  have 
been  changed  by  amendment. 

The  judgment  must  be  reversed  and  a  new  trial  ordered,  costs 
to  abide  the  event. 


Sec.  1.]    Pacts  Constituting  the  Cause  op  Action.  321 

JOHNSON  V.  NORTHWESTERN  INSURANCE  CO. 

Supreme  Court  of  Wisconsin,  1896.     94  Wis.  117. 

Action  on  an  insurance  policy  for  $800.00  on  a  horse.  A 
demurrer  ore  tcnus  to  the  complaint  was  overruled,  and  the 
trial  resulted  in  a  verdict  for  the  plaintiff,  from  which  defend- 
ant appealed.' 

Newman,  J. :  At  the  commencement  of  the  trial  there  was 
a  demurrer  ore  teniis  to  the  complaint,  on  the  ground  that  it 
did  not  state  a  cause  of  action.  The  policy  contained  an  a^jree- 
ment  that  the  insured  would  "use  due  dilii^ence,  precaution, 
and  care  in  the  use,  and  for  the  safety,  health,  and  preservation, 
of  said  live  stock,  and  in  case  of  sickness  or  accident  would 
promptly  summon  to  his  aid  the  best  veterinarv"  surgeon  to  be 
had  in  the  vicinity."  A  failure  to  do  so  was  to  avoid  the  policy. 
The  demurrer  was  based  principally  upon  the  failure  of  the 
complaint  to  allege  affirmatively  the  performance  of  this  agree- 
ment. This  was  not  a  defect  in  the  complaint.  The  perform- 
ance of  this  agreement  was  a  condition  subsequent.  It  did  not 
go  to  the  original  validity  of  the  policy,  but  was  a  stipulation 
to  be  performed  afterwards.  Its  breach  is  a  defense  merely. 
It  is  no  necessary  part  of  the  plaintiff's  case,  in  the  first  instance, 
either  by  pleading  or  proof,  to  show  that  he  has  performed  it. 
If  the  defendant  relied  upon  failure  to  perform  this  stipulation 
of  the  policy,  it  should  be  set  up  as  a  defense.  It  could  make  it 
available  in  no  other  way.  Redman  v.  Insurance  Co.,  49  Wis. 
431  (4  N.  W.  591)  ;  Schobacher  v.  Insurance  Co.,  59  Wis.  86, 
(17  N.  W.  969)  ;  Benedix  v.  Insurance  Co.,  78  Wis.  77  (47  N. 
W.  176).    *    *    * 

Judgment  reversed.^ 

8  Statement  condensed  and  part  9  The  judgment  was  reversed  for 
of  the   opinion   omitted.  error  in  the  instructions. 


322  The  Complaint.  [Chap.  III. 

JONES  V.  ACCIDENT  ASSOCIATION. 

Supreme  Court  of  Iowa,  1894.     92  Iowa  652. 

KiNNE,  J.  1.  April  8,  1891,  the  defendant  company  issued 
its  policy  of  insurance  upon  the  life  of  one  W.  M.  Jones,  in  the 
sum  of  $5,000,  against  "personal  bodily  injuries,  effected  during 
the  continuance  of  membership  and  this  insurance,  through  ex- 
ternal, violent  and  accidental  means. ' '  Among  the  conditions  of 
the  said  policy  were  the  following:  "The  insurance  under  this 
contract  shall  not  extend  to  or  cover  *  *  *  accidental  in- 
juries or  death  resulting  from  or  caused,  directly  or  indirectly, 
wholly  or  in  part,  by  *  *  *  fighting;  *  *  *  or  vol- 
untary exposure  to  unnecessary  danger ;  nor  extend  to  or  cover 
accidental  injuries  or  death  happening  while  the  insured  is  un- 
der the  influence  of  intoxicating  drinks,  or  in  consequence 
thereof ;  or  while  or  in  consequence  of  violating  the  law. ' '  And 
also:  "The  provisions  and  conditions  aforesaid,  and  a  strict 
compliance  therewith  during  the  continuance  of  this  contract, 
are  conditions  precedent  to  the  issuance  hereof,  and  to  its  valid- 
ity and  enforcement."  The  application  upon  which  the  policy 
was  based  contained  the  following  statement:  "(3)  My  habits 
of  life  are  correct  and  temperate,  and  I  agree  that  the  certificate 
of  membership  shall  not  cover  any  injury  which  may  happen  to 
me  while  under  the  influence  of  intoxicating  drinks  or  narcotics, 
or  in  consequence  of  having  been  under  the  influence  thereof." 
The  policy  was  made  payable  to  plaintiff.  The  petition  charges 
"that  on  or  about  the  31st  day  of  May,  1892,  at  Council  Bluffs, 
Iowa,  and  whilst  the  said  policy  of  insurance  was  in  full  force 
and  effect,  and  without  any  fault  or  negligence  on  the  part  of 
the  assured,  he,  the  said  W.  M.  Jones,  was  mortally  wounded  by 
a  pistol  ball  fired  by  one  John  Wade,  and  that  he  died  as  a  result 
thereof."  It  is  also  averred  that  proper  proofs  of  death  were 
sent  to  and  received  by  the  company  in  due  time.    *     *    * 

At  the  close  of  the  testimony,  defendant  filed  a  motion  in 
arrest  of  judgment,  claiming  that  the  petition  did  not  state  a 
cause  of  action,  in  that  it  failed  to  aver  that  none  of  the  condi- 
tions upon  which  the  policy  was  issued  were  "breached"  by  the 
assured.  This  motion  was  overruled  and  an  exception  taken. 
Pef  endant  's  contention  is  that  it  was  only  to  be  liable  in  the  ease 


Sec.  1.]    Facts  Constituting  the  Cause  of  Action.  323 

of  death  of  the  assured  in  the  absence  of  certain  conditions 
stated  in  the  policy,  and  that  it  was  incumbent  upon  the  plain- 
tiff to  negative  these  exceptions  in  his  petition.     The  question 
t|ien  is,  must  these  conditions  or  exceptions,  the  existence  of 
which  may  relieve  the  defendant  from  liability,  be  pleaded  by 
plaintiff,  or  are  they  so  far  matters  of  defense  as  that  the  bur- 
den is  upon  the  defendant  to  plead  and  prove  them?     In  our 
judgment,  they  were  not  required  to  be  pleaded  or  proven  by 
plaintiff.     They  were  purely  matters  to  be  relied  upon  in  de- 
fense of  an  action  on  the  policy.     Defendant  insured  Jones, 
** subject  to  the  by-laws  and  all  the  conditions  indorsed  hereon 
(on  the  policy)  against  personal  bodily  injuries  effected  during 
the  continuance  of  membership  and  this  insurance,  through  ex- 
ternal, violent,  and  accidental  means."    On  this  policy  it  is  said: 
"The  conditions  under  which  this  certificate  was  issued  and 
accepted  by  the  assured  are  as  follows :    Then  follow  the  several 
provisions  that  the  contract  shall  not  extend  to  or  cover  certain 
cases,  theretofore  mentioned.    At  the  end  of  these  conditions  it 
is  said  "The  provisions  and  conditions  aforesaid,  and  a  strict 
compliance  therewith  during  the  continuance  of  this  contract, 
are  conditions  precedent  to  the  issuance  hereof,  and  its  validity 
and  enforcement."     It  ought  to  be  said  that  the  fact  that  the 
contract  says  that  certain  provisions  of  it  shall  be  conditions 
precedent  does  not,  of  necessity,  make  them  such.     We  cannot 
accede  to  the  doctrine  that  the  provisions  under  consideration 
are  conditions  precedent.    A  condition  precedent,  as  applied  to 
the  contract,  is  a  condition  which  must  be  performed  before  the 
agreement  of  the  parties  becomes  a  valid  contract.     Redman  v. 
Insurance  Company,  4  N.  W.  595,  49  Wis.  431.    The  conditions 
in  this  case  were  that  the  contract  should  not  cover  accidental 
death  resulting  from  or  caused  by  fighting,  voluntary  exposure 
to  unnecessary  danger,  intoxication,  or  to  death  in  consequence 
thereof,  and  in  consequence  of  violating  the  law.     Not  one  of 
these  conditions  were  to  happen  prior  to  the  time  the  contract 
between  the  assured  and  the  company  should  become  binding. 
The  contract  became  binding  upon  the  company  as  soon  as  it 
accepted  the  assured  as  a  member,  and  issued  to  him  its  policy. 
The  situation  then  is  this:     That  there  was  a  valid  contract  of 
insurance  when  the  policy  issued,  but  it  might  thereafter,  upon 
the  happening  of  some  of  these  conditions,  cease  to  be  enforce- 
able.    If,  then,  these  provisions  of  the  policy  can  be  properly 


324  The  Complaint.  [Chap.  III. 

called  conditions,  they  are  in  no  sense  conditions  precedent. 
Under  them  the  defendant  might  be  relieved  from  liabilit}'. 
They  were  each  and  all  matters  of  defense,  available  to  the  de- 
fendant; but,  not  constituting  a  part  of  the  plaintiff's  case, 
the  burden  did  not  rest  upon  him  to  either  plead  or  prove  them 
in  the  first  instance.  Redman  v.  Insurance  Co.,  supra;  Coburn 
V.  Insurance  Co.,  145  Mass.  226,  13  N.  E.  604;  Freeman  v.  In- 
surance Co.,  144  Mass.  572,  12  N.  E.  372;  Insurance  Co.  v. 
Nichols  (Tex.  Civ.  App.),  24  S.  W.  910;  Badenfeld  v.  Associa- 
tion (Mass.),  27  N.  E.  770;  Insurance  Co.  v.  Ewing,  92  U.  S. 
377;  Cronkhite  v.  Insurance  Co.  (Wis.),  43  N.  W.  731;  New- 
man V.  Association,  76  Iowa  63,  40  N.  W.  87;  Sutherland  v. 
Insurance  Co.  (Iowa),  54  N.  W.  453.  The  motion  in  arrest  was 
properly  overruled.^**    *    *    • 

Judgment  reversed.^ 


LENT  V.  N.  Y.  &  M.  R.  R.  CO. 
Court  of  Appeals  of  New  York,  1892.    130  N.  Y.  504. 

Action  to  recover  the  amount  awarded  to  plaintiff  in  condem- 
nation proceedings.  The  complaint  alleges  the  various  proceed- 
ings resulting  in  the  award,  but  did  not  allege  non-payment.* 

Brown,  J.  *  *  *  It  remains  to  consider  the  question 
whether,  giving  to  the  word  "entered"  the  interpretation  that 
we  have,  the  complaint  states  a  cause  of  action.  The  effect  of 
the  recording  of  the  order  was  to  create  a  debt  against  the 
defendant,  and  in  that  respect  its  liability  is  analogous  to  a 
liability  arising  upon  the  maturity  of  a  contract  for  the  payment 
of  money,  and  the  question  is  presented  whether  an  allegation 
of  non-payment  is  essential  and  material  to  the  cause  of  action. 
The  code  (section  481),  provides  that  the  complaint  must  con- 
tain a  plain  and  concise  statement  of  the  facts  constituting  the 
cause  of  action,  and  the  general  rule  deduced  therefrom  is  that 
whatever  facts  are  essential  to  be  proven  to  entitle  the  plaintiff 

10  For  a  collection  of  the   cases,  1  The  judgment  was  reversed  for 

see  Eed  Men's  Fraternal  Accident  errors   in   the   course    of   the   trial. 

Ass'n   V.   Eippy,   50   L.    R.   A.    (N.  2  Statement   condensed   and  part 

S.)   1006,   (1913),  annotated.  of  the   opinion   omitted. 


Sec.  1.]   Facts  Constituting  the  Cause  op  Action.  325 

to  recover  upon  the  trial  must  be  alleged  in  the  complaint.  It 
does  not  admit  of  controversy  that,  upon  an  ordinary  contract 
for  the  payment  of  money,  non-payment  is  a  fact  which  consti- 
tutes the  breach  of  the  contract,  and  is  the  essence  of  the  cause 
of  action,  and,  being  such,  within  the  rule  of  the  code  it  should 
be  alleged  in  the  complaint.  It  is  said,  however,  that  payment 
is  always  an  affirmative  defense,  which  must  be  pleaded  to  be 
available,  and  hence  non-payment  need  not  be  alleged,  as  it  is 
not  a  fact  put  in  issue  by  a  general  denial.  Salisbury  v.  Stin- 
son,  10  Hun  242.  The  rule  that  payment  is  an  affirmative  de- 
fense is  not  one  embodied  in  the  code,  but  had  its  origin  under 
the  common  law  practice  in  the  plea  of  non-assumpsit ;  and  the 
reason  for  it  was  that  in  assumpsit  the  allegation  in  the  declara- 
tion and  tlie  traverse  in  the  plea  were  in  the  past  tense,  and, 
under  the  rule  which  excluded  all  proof  not  strictly  within  the 
issue,  no  evidence  was  admissible,  except  such  as  had  a  ten- 
dency to  show  that  the  defendant  never  had  made  the  promise. 
It  was  never  applied  in  the  action  of  debt,^  the  allegation  in 
that  form  of  action  being  in  the  present  tense,  and,  under  the 
plea  of  nil  dehet,  any  fact  tending  to  show  that  there  was  no 
indebtedness  on  the  part  of  the  defendant  was  admissible.  The 
history  of  the  rule  is  set  forth  in  Judge  Seldon's  opinion  in 
McKyring  v.  Bull,  16  N.  Y.  297,  and  need  not  be  referred  to 
here.  Following  the  rule  thus  established  under  the  former 
practice,  the  courts  have  uniformly  held,  since  the  adoption  of 
the  code,  that  payment  must  be  pleaded,  and  cannot  be  proven 
under  the  general  issue.  While  the  effect  of  these  decisions  is 
to  modif}^  somewhat  the  rule  embodied  in  section  500  of  the 
code,  their  tendency  is  to  simplify  pleading,  as  under  their  ap- 
plication the  plaintiff  is  informed  of  the  precise  defense  in- 
tended to  be  made,  and  thus  unnecessary  preparation  is  obviated, 
and  surprise  on  the  trial  avoided. 

But  there  is  no  need  to  further  extend  the  rule,  and  hold  that, 
because  payment  as  a  defense  must  be  pleaded,  the  breach  of  the 
agreement  need  not  be  alleged  in  the  complaint.  That  would 
have  the  contrary  effect,  and  lead  to  embarrassments  that  are 
avoided  when  the  plain  provisions  of  the  code  are  followed.  No 
authority  exists,  so  far  as  I  am  able  to  find,  except  the  case  of 
Salisbury  v.  Stinson,  holding  that  a  breach  of  the  ccTntract  need 

3  See  note  to  McKyring  v.  Bull,  post,  p.  — . 


326  The  Complaint.  [Chap.  III. 

not  be  pleaded,  but  all  text  writers  and  reported  eases  hold  to 
the  contrary.  1  Chitty  PI.  &  Pr.,  pp.  325-359;  Com.  Dig.  tit. 
''Pleader,"  C,  44;  2  Wait,  Law  &  Pr.  p.  318;  1  Wait.  Act.  & 
Def.  pp.  394,  395,  and  eases  cited;  Witherhead  v.  Allen,  4  Abb. 
Dec.  628;  Tracy  v.  Tracy  (Sup.),  12  N.  Y.  Supp.  665;  Van  Gie- 
son  V.  Van  Gieson,  10  N.  Y.  316 ;  Krower  v.  Reynolds,  99  N.  Y. 
245,  1  N.  E.  775.  Witherhead  v.  Allen  arose  upon  a  demurrer 
to  a  complaint.  The  opinion  states  the  rule  as  follows :  "When 
the  action  is  founded  upon  the  contract  obligation  or  duty  of 
the  defendant,  the  very  gist  and  essence  of  the  cause  of  action 
is  the  breach  thereof  by  the  defendant,  and,  unless  a  breach  is 
alleged,  no  cause  of  action  is  shown."  In  Van  Gieson  v.  Van 
Gieson,  10  N.  Y.  316,  it  is  said:  "The  material  allegations  of  the 
complaint  in  this  case  are  the  making  by  the  defendants  of  the 
promissory  note,  the  transfer  of  it  to  the  plaintiff,  and  the  non- 
payment by  the  defendants.  Each  of  them  is  material,  for 
without  the  concurrence  of  all  of  them  the  complaint  would  not 
show  a  cause  of  action."  To  the  same  effect  is  Keteltas  v.  Myers, 
19  N.  Y.  231.  See,  also,  Code  §  534,  1213,  subd.  2.  In  Krower 
V.  Reynolds  it  was  held,  in  an  action  on  a  covenant  to  pay  a 
mortgage,  that  it  was  necessary  to  allege  that  the  mortgage 
had  not  been  paid,  or  that  the  defendant  had  failed  to  perform 
his  covenant,  and  without  such  allegation  the  complaint  was 
demurrable.  And  in  numerous  cases,  which  need  not  be  cited, 
but  of  which  Allen  v.  Patterson,  7  N.  Y.  476,  is  a  type,  the  rule 
is  recognized  by  implication,  but  the  complaints  were  held  good 
because  of  an  allegation  of  indebtedness  by  the  defendant  to  the 
plaintiff.  This  rule  is  further  recognized  in  section  534  of  the 
code,  which  provides  a  simple  form  of  pleading  on  an  instru- 
ment for  the  payment  of  money  only,  but  requires  the  plaintiff 
to  state  the  sum  which  he  claims  to  be  due  to  him  thereon. 
Again,  the  complaint,  when  verified,  and  there  is  no  answer, 
stands  as  proof  of  the  plaintiff's  claim,  and  the  clerk  is  author- 
ized to  enter  judgment  thereon. 

But  if  the  plaintiff  is  not  required  to  allege  a  breach  of  the 
contract  or  state  the  amount  due,  as  his  verification  would  cover 
only  the  facts  alleged,  the  clerk,  under  sections  420,  1212,  1213, 
of  the  code,  would  be  authorized  to  enter  judgment  for  the  whole 
amount  called  for  by  the  contract,  and  this  Avithout  proof  of  the 
amount  due  thereon.  This  would  be  contrary  to  the  whole  spirit 
of  the  code,  and  would  require  the   clerk  to  presume  a  fact 


Sec.  1.]   Facts  Constituting  the  Cause  of  Action,  327 

neither  alleged  nor  proved,  viz.,  that  no  payments  had  been 
made.  These  views  show  how  essential  to  the  practice  it  is  that 
the  plaintiff  should  allege  the  breach  of  the  contract  of  Avhich 
he  complains.  That  breach  is  always  a  fact,  and  it  is  of  the  very 
essence  of  the  cause  of  action.  The  complaint  should  show  facts 
which,  if  verified  and  not  denied,  prove  to  the  clerk  that  the 
plaintiff  is  entitled  to  the  judgment  which  he  demands.  It  can- 
not be  said  that  where  the  breach  consists  in  non-payment  of  an 
agreed  sum,  it  is  not  an  issuable  fact,  because  payment  cannot 
be  proven  under  general  denial.  The  most  that  can  be  said  is 
that  that  form  of  denial  does  not  put  that  fact  in  issue,  and  to 
that  extent  the  rule  that  payment  must  be  pleaded  must  be 
deemed  to  modify  the  rule  of  pleading  under  the  code  in  refer- 
ence to  a  general  denial.  But  no  reason  is  apparent  how  it  can 
justify  the  omission  from  the  complaint  of  a  fact  material  to 
the  plaintiff's  cause  of  action,  and  essential  to  be  proved  to  en- 
title the  plaintiff  to  a  judgment.  Such  facts,  under  the  code, 
must  be  pleaded.  No  presumption  can  be  indulged  in  that  a 
defendant  has  failed  in  his  duty  or  omitted  to  perform  his  con- 
tract obligation.  There  was  no  allegation  in  the  complaint  in 
this  action  that  the  defendant  had  failed  or  omitted  to  pay  the 
award,  and  no  allegation  of  indebtedness,  and  without  such  no 
cause  of  action  was  stated.*  On  this  ground  we  are  of  the 
opinion  that  the  demurrer  was  well  taken.  Other  objections 
to  the  complaint  were  discussed  upon  the  argument,  but  none 
of  them  are  considered  well  taken.  The  judgment  must  be  re- 
versed, and  the  demurrer  sustained,  with  costs,  with  leave  to  the 
plaintiffs  to  amend  the  complaint  within  thirty  days  on  payment 
of  costs.  All  concur,  except  Follett,  C.  J.,  and  Vann,  J.,  dissent- 
ing, and  Potter,  J.,  not  voting. 


WIEDE  V.  PORTER. 

Supreme  Court  of  Minnesota,  1876.    22  Minn.  429. 

The  complaint  alleged  the  sale  of  certain  horses  by  defendant 
to  plaintiff's  assignor,  with  a  warranty  of  soundness,  etc.     The* 
answer  was  a  general  denial. 

4Eosseter    v.    Schultz,    62    Wis.  655,    (1885),  contra. 


328  The  Complaint.  [Chap.  III. 

At  the  trial,  the  court  excluded  all  evidence  to  prove  that  the 
contract  was  made  by  defendant's  authorized  agent,  and  di- 
rected a  verdict  for  defendant.     The  plaintiff  appealed.^ 

Cornell,  J.  This  case  comes  before  us  upon  exceptions  to 
the  ruling  of  the  court  upon  the  admissibility  of  certain  testi- 
mony offered  under  the  issues  made  by  the  pleadings.  The  real 
question  presented  is  whether,  upon  an  issue  raised  by  a  denial 
of  the  execution  of  a  contract  of  sale  and  warranty,  alleged  to 
have  been  made  between  defendant  and  one  Shaeffer,  it  was  com- 
petent to  prove  that  such  contract  was  made  by  the  duly  author- 
ized agent  of  Shaeffer;  in  other  words,  when  the  contract  of  the 
principal,  which  constitutes  the  foundation  of  the  cause  of  ac- 
tion, is  made  through  the  intervention  of  an  agent,  is  it  neces- 
sary, in  pleading  it,  to  aver  that  fact  and  the  authority  of  the 
agent  ? 

Issuable  facts  alone  are  required  to  be  stated  in  a  pleading, 
and  those  according  to  their  logical  and  legal  effect.  In  this 
case  the  fact  traversed  by  the  answer,  the  proof  of  which  would 
support  the  action,  was  the  execution  of  the  particular  contract. 
If  it  was  entered  into  by  the  party,  its  effect  was  the  same, 
whether  done  by  the  principal  personally  or  by  his  authorized 
agent.  In  either  case  it  was  the  contract  of  the  principal.  The 
complaint  was  sufficient  to  allow  the  evidence  offered,  tending 
to  show  that  the  alleged  contract  was,  in  fact,  the  contract  of 
Shaeffer  and  the  exclusion  of  such  evidence  was  error,  for 
which  a  new  trial  must  be  granted.^ 

Judgment  reversed. 


PIER  V.  HEINRICHOFFEN. 

Supreme  Court  of  Missouri,  1873.    52  Mo.  333. 

EwiNG,  Judge,  delivered  the  opinion  of  the  court. 
This  is  an  action  on  a  promissory  note  by  the  plaintiffs  as  in- 
dorsees against  the  defendants  as  indorsers,  payable  at  the  office 

6  statement  condensed.  6  And  so  in  Slevin  v.  Reppj,  46 

Mo.  606,  (1870). 


Sec.  1.]   Facts  Constituting  the  Cause  of  Action,  329 

of  Williams,  in  St.  Paul,  Minnesota ;  the  note  bears  date,  St. 
Louis,  October  12,  1860,  and  is  payable  on  the  first  day  of  July 
thereafter  (1861).  The  petition  contains  the  usual  averments 
of  presentment  and  demand  of  payment  at  the  maturity'  of  said 
note,  refusal  to  pay,  protest  of  the  same,  and  that  defendants 
were  duly  notified  thereof.  The  answer  of  defendants  is  a  de- 
nial of  the  allegations  of  the  petition.  Plaintiffs  made  applica- 
tion for  a  continuance  of  the  cause,  on  the  ground  of  the  ab- 
sence of  witnesses,  who  resided  at  St.  Paul,  by  whom  tliey  ex- 
pected to  prove  facts  excusing  the  delay  in  making  the  demand 
of  payment,  and  in  giving  notice  to  the  defendants.  The  motion 
for  a  continuance  being  overruled,  and  the  cause  being  submit- 
ted to  the  court, — jury  waived, — the  plaintiffs  read  the  note  in 
evidence,  and  then  offered  to  show  by  the  certificate  of  protest 
of  one  Malmros,  a  notary  public,  and  his  depositions  accom- 
panying the  same,  that  said  note  was  presented  for  payment  at 
the  place  where  the  same  was  made  paj-able,  that  it  was  pre- 
tested, and  notice  given  the  defendants  on  the  15th  day  of  July, 
1861.  This  evidence  was  excluded  on  the  objection  of  defend- 
ants, whereupon  plaintiffs  took  a  non-suit  with  leave,  etc.  The 
motion  to  set  aside  the  nonsuit  being  overruled,  the  cause  is 
brought  to  this  court  by  appeal.    *     *    * 

The  order  in  which  evidence  may  be  introduced  is  a  matter 
very  much  in  the  discretion  of  the  court,  and  this  discretion  may 
be  properly  exercised  by  inverting  the  regular  order,  and  admit- 
ting evidence  that  presupposes  facts,  Avhich  logically  and  nat- 
urally precede  it,  but  when  such  evidence  is  offered  abstractly 
without  an  offer  to  sustain  it  by  proof  of  such  antecedent  or 
primary  facts,  and  without  which  it  would  be  wlioUy  unavail- 
ing, and  no  intimation  of  such  a  purpose  is  given  to  the  court, 
we  cannot  say  that  the  court  erred  in  excluding  it. 

This  evidence,  however,  was  rightly  excluded  on  more  sub- 
stantial grounds.  The  petition  avers  that  demand  of  payment 
was  made  at  the  maturity  of  the  note,  and  that  defendant  was 
duly  notified  thereof.  This  allegation  Avas  put  in  issue  bj'  the 
answer.  Neither  the  evidence  offered  nor  that  of  the  absent  wit- 
ness, as  disclosed  by  the  affidavit  for  a  continuance,  tended  to 
prove  this  averment,  but  on  the  contrary  to  disprove  it  by  show- 
ing an  excuse  for  not  making  the  demand  at  the  time  alleged  in 
the  petition. 

It  may  be  conceded,  that  at  common  law  this  petition  would 


330  The  Complaint.  [Chap.  III. 

be  sufficient;  that  the  averments  would  be  sustained  by  proof 
of  any  state  of  facts  showing  an  excuse'  according  to  the  custom 
of  merchants,  by  proof  of  facts  which  dispense  with  actual  de- 
mand and  show  due  diligence,  without  stating  them  specifically 
in  the  pleading. 

Is  this  good  pleading  however  under  our  code  ?  For  not  only 
the  forms  of  pleading,  but  the  rules  by  which  the  sufficiency  of 
pleadings,  except  where  otherwise  specially  provided,  are  to  be 
determined  and  prescribed  by  our  Practice  Act.  (2  AY.  S.  §  1, 
p.  1012.) 

As  the  vice  of  the  old  system  of  pleadings  was  its  prolixity, 
its  general  averments,  and  general  issues,  and  the  delay  and 
expense  inseparable  from  it,  the  new  system  (or  the  modifica- 
tions of  the  old)  which  we  have  adopted  has  little  claim  to  be 
considered  a  reform,  unless  it  avoids  such  defects  and  furnishes 
rules,  by  which  the  great  object  of  all  pleadings  is  better  at- 
tained, namely,  to  arrive  at  a  material,  certain  and  single  issue. 
Hence,  the  great  improvement  of  our  code  consists  in  requiring 
the  pleadings  to  contain  a  plain  and  concise  statement  of  the 
facts,  constituting  a  cause  of  action,  or  matter  of  defense.     (2  W. 
S.  1013,  §  3  ;  and  1015,  §  3.)    Facts,  and  not  evidence,  nor  conclu- 
sions of  law,  must  be  distinctly  stated.     Every  fact,  which  the 
plaintiff  must  prove  to  maintain  his  suit,  is  constitutive  in  the 
sense  of  the  code,  and  must  be  alleged.    Facts,  which  dispense  with 
the  necessity  of  making  demand  of  payment  and  giving  notice  to 
the  indorser,  are  as  essential  to  the  plaintiff's  right  of  recovery, 
as  the  fact  that  the  defendant  indorsed  the  note,  or  that  it  was 
executed  and  delivered  by  the  maker,  or  that  plaintiff  is  the 
holder.     And  the  defendant  has  the  right  to  controvert  the  one 
or  the  other  in  his  answer.     He  should  therefore  be  informed 
by  proper  averments  in  the  petition,  what  facts  are  relied  on 
to  charge  him,  so  that  he  may  have  an  opportunity  to  controvert 
them.     Such  an  allegation  of  demand  of  payment  at  maMirity, 
and  due  notice  thereof  to  the  indorser,  could  give  no  intimation 
to  the  defendant  of  the  nature  of  the  evidence,  by  which  the 
plaintiff  proposed  to  sustain  it.     He  could  only  know,  that  he 
received  no  notice ;  but  of  what  steps  if  any  were  taken  to  give 

7  But  see  Burgh  v.  Legge,  5  M.  notice  is  supported  by  proof  of 
&  W.  418,  (1839).  For  the  view  waiver  or  other  excuse,  see  Harri- 
that  an  allegation  of  demand  and      son   v.  Bailev,  99  Mass.  620. 


Sec.  1.]    Facts  Constituting  the  Cause  of  Action.  331 

it,  or  of  the  causes  of  the  failure  to  give  it,  or  of  the  facts 
relied  on  to  excuse  the  want  of  it  he  of  course  is  presumed  to 
have  no  knowledge.  These  are  matters  within  the  knowledge 
peculiarly  of  the  plaintiff,  which  he  should  allege  in  his  plead- 
ing, and  prove.  He  alleges  facts  the  legal  effect  of  which  if 
true  could  charge  the  defendant ;  but  he  claims,  that  he  should 
be  allowed  to  sustain  this  allegation  by  facts  of  a  totally  differ- 
ent character,  not  alleged  in  his  petition,  because  the  same  legal 
consequence  would  follow.* 

In  Garvey  v.  Fowler,  4  Sandf.  665,  it  was  held,  that  where  in 
an  action  on  a  check,  facts  are  relied  on  which  excuse  notice  of 
presentment  and  non-payment,  as  that  the  drawer  had  no  funds 
in  the  bank  the  day  the  check  was  presented,  they  must  be  stated 
in  the  complaint.  And  that  an  averment  of  due  notice  will  not 
be  sustained  by  evidence  of  facts  excusing  notice. 

To  the  same  effect  is  Schultz  v.  Dupuy,  3  Abb.  Pr.  252. 

The  question  has  been  decided  the  same  way  in  Iowa,  Lam- 
bert &  Co.  V.  Palmer,  et  at.,  29  Iowa  104,  the  court  holding  that 
,  under  an  averment  like  that  in  the  case  at  bar,  there  could  be 
no  recovery  upon  proof  of  facts  amounting  to  a  waiver  of  de- 
mand and  notice,  as  a  subsequent  promise  to  pay  by  the  drawer 
or  indorser  after  full  knowledge  of  the  facts.  See,  also.  Cole  v. 
Wintercost,  12  Tex.  118. 

It  is  scarcely  necessary  to  add,  that  the  codes  of  New  York, 
Iowa  and  Texas,  in  respect  to  the  rules  of  pleading,  are  sub- 
stantially the  same  as  our  own. 

Judgment  affirmed. 

8  And  so  in  Thompson  v.  St.  the  unwary.  The  principles  of  in- 
Charles,  227  Mo.  220,  (1919)  that  surance  are  abstruse  and  highly 
in  an  action  on  a  building  con-  technical  in  many  phases,  under- 
tract  an  allegation  of  performance  stood  by  those  who  tender  the 
was  not  supported  by  proof  of  a  policies,  not  by  those  who  accept 
waiver  by  defendant,  distinguish-  them.  The  plain  indemnity  fea- 
ing  certain  insurance  cases  in  tures  of  policies  are  not  iufre- 
which  the  contrary  rule  la  fre-  queutly  compassed  about  with 
quently  applied:  "In  the  law  of  rows  of  impaling  provisions,  excep- 
contraets  insurance  policies  are  a  tions,  provisos  and  forfeitures  in- 
class  unto  themselves.  They  are  tended  to  defeat  liability." 
prepared  by  the  wary,  accepted  by 


332  The  Complaint.  [Chap,  III. 

WOODRUFF  V.  WENTWORTH. 

Supreme  Judicial  Court  of  Massachusetts,  1882.     133  Mass.  309. 

Field,  J.® — The  instruction  to  the  jury,  "that  if  any  con- 
sideration other  than  the  one  declared  upon  is  shown  to  have 
been  actually  paid  or  received,  this  is  not  a  variance  which  pre- 
vents the  plaintiff's  recovery,  but  the  action  may  still  be  main- 
tained," was  erroneous.  The  consideration  must  be  proved  as 
alleged.     Stone  v.  White,  8  Gray  589. 

The  declaration^''  alleged  that  the  defendant's  promise  was 
"in  consideration  that  the  plaintiff  would  assent  to  the  election 
of  William  H.  Pray  as  manager  of  the  American  Carpet  Ijining 
Company,  in  the  defendant's  place,"  etc.  There  was  evidence 
that  the  consideration  of  the  defendant's  promise  was  that  the 
plaintiff  would  vote  for  the  election  of  Pray  as  the  manager, 
and  also  would  vote  to  increase  the  salaries  of  the  president, 
treasurer,  clerk  and  manager.  If  this  was  the  contract  between 
the  parties,  th.e  defendant  would  not  be  liable  unless  the  plain- 
tiff proved  that  he  had  done  both  these  things.  The  declaration 
does  not  describe  any  such  contract,  and  it  does  not  correctly 
allege  either  the  whole  consideration  proved  or  any  part  of  it. 

The  necessity  of  proving  the  consideration  of  the  promise  of 
the  defendant,  as  laid  in  the  declaration,  must  be  distinguished 
from  the  necessity  of  alleging  everything  that  is  promised  by 
the  defendant.  Brackett  v.  Evans,  1  Cush.  79.  Neither  can 
an  amendment  to  the  declaration  after  verdict  be  permitted  in 
this  case,  as  was  done  in  Cleaves  v.  Lord,  3  Gray  66,  in  Stone  v. 
White,  uhi  supra,  and  in  many  other  cases.     *     *     * 

Exception  sustained. 

9  Statement  and  part  of  the  in  this  respect  substantially  the 
opinion   omitted.  same   as   that   of  the  regular  Code 

10  The   simplified  pleading  under       states.     Ed. 
the  Massachusetts  Practice  Act  is 


Sec.  1.]    Facts  Constituting  the  Cause  op  Action.  333 

GRIFFIN  V.  BASS  FOUNDRY  COMPANY. 

Supreme  Court  of  Alabama,  1902.     135  Ala.  490. 

This  was  a  suit  brought  by  the  appellant,  W.  H.  Griffin, 
against  the  appellee,  the  Bass  Foundry  &  Machine  Company,  to 
recover  as  damages  the  reasonable  profits  which  plaintiff  would 
have  made  under  a  contract  with  the  defendant,  if  the  defendant 
had  complied  with  its  said  contract.  The  facts  of  the  case 
necessary  to  an  understanding  of  the  decision  on  the  present 
appeal,  are  sufficiently  stated  in  the  opinion. 

There  were  verdict  and  judgment  for  the  defendant.  From 
this  judgment  the  plaintiff  appeals,  and  assigns  as  error  the 
several  rulings  of  the  trial  court  to  which  exceptions  were 
reserved. 

Tyson,  J. — This  is  an  action  for  damages  for  an  alleged 
breach  of  a  contract. 

The  complaint^  avers  that  the  defendant  agreed  to  pay  for 
the  cutting  of  wood  and  the  royalty  on  the  same,  and  that  the 
breach  consisted  in  its  failure  to  do  so.  The  negotiations  be- 
tween the  parties  resulting  in  a  final  agreement  between  them 
is  shown  by  several  writings.  A  number  of  letters  and  the 
original  draft  of  the  contract  embody  the  terms  and  stipulations 
finally  agreed  upon.  These  several  writings  must,  therefore,  be 
looked  to  for  the  purpose  of  ascertaining  what  were  the  terms 
of  the  contract. 

It  is  true  that  defendant  agreed  to  advance  to  the  plaintiff 
money  to  pay  for  the  cutting  of  wood  and  the  royalty  on  same. 
But  its  promise  to  advance  the  money  to  pay  the  royalty,  if  not 
for  the  cutting  of  the  wood,  was  upon  condition  that  a  timber 
deed  be  made  to  it  covering  the  right  of  possession  and  right  of 
way.  The  obligation  of  defendant  to  pay  being  conditional  and 
not  absolute,  the  condition  and  its  performance  should  have 
been  averred  in  the  complaint. — Griel  v.  Solomon,  82  Ala.  85. 
This  not  being  done,  there  is  clearly  a  variance^  between  the 

1  The  simplified  pleading  under  where  the  complaint  alleged  the 
the  Alabama  statute  appears  to  be  execution  and  delivery  of  a  policy, 
substantially  the  same  as  that  un-  and  the  proof  showed  an  oral  con- 
der   the   regular   codes.  tract   to   issue   a   policy,   the   court 

2  In  Walrath  v.  Hanover  Fire  announced  the  following  rule  as 
Ins.    Co.,    216    N.    Y.    220    (1915),  to  variance: 


334 


The  Complaint. 


[Chap.  III. 


contract  counted  upon  and  the  one  proven.  Besides,  the  con- 
dition having  been  shown  and  no  performance  of  it  proven,  no 
breach  of  the  contract  as  alleged  is  shown. 

The  affirmative  charge,  if  requested,  could  well  have  been 
given  for  the  defendant.  This  being  true,  whatever  of  errors 
may  have  been  committed  in  the  giving  or  refusing  of  charges  is 
without  injury.  '  The  Bienville  Water  Co.  v.  City  of  Mobile,  125 
Ala.  178. 

Judgment  affirmed. 


WILKINS  V.  STIDGER. 


Supreme  Court  of  California,  1863.     22  Cal.  232. 


Crocker,  J.  This  action  was  commenced  by  one  McDaniel 
against  the  defendant  to  recover  a  demand  for  services  as  a 
surgeon  and  physician.     The  complaint  avers  that  the  plaintiff, 


"It  is  fundamental  that  in  civil 
actions   the  plaintiff   must   recover 
upon  the   facts  stated  in  his  com- 
plaint,   or   not    at    all.      In    case    a 
complaint    proceeds    ou   a    definite, 
clear    and    certain    theory,    it    will 
not   support   or   permit   of   another 
theory  because  it  contains  isolated 
or  subsidiary  statements  consistent 
therewith.     A  party  must   recover 
not    only   according   to    his    proofs 
but     according    to     his    pleadings. 
(Northam    v.    Dutchess    Co.    Mut. 
Ins.    Co.,    177    N.    Y.    73;    Canton 
Brock   Co.   V.   Howlett,   169   N.   Y. 
293;    Brightson  v.   Claflin   Co.,   180 
N.  Y.  7G;   Southwick  v.  First  Nat. 
Bank  of  Memphis,  84  N.  Y.  420). 
At   the    close   of  the   entire   evi- 
dence    the     court     permitted     the 
plaintiff,   under   the   proper    objec- 
tion and  exception  of  the   defend- 
ant, to  insert  in  the  complaint,  as 
an   amendment,   allegations  to   the 
effect    that    the    defendant    agreed 


to  deliver  the  policy  of  insurance 
and  had  failed  and  neglected  to 
perform  that  agreement.  The  de- 
fendant, as  we  have  stated,  ob- 
jected throughout  the  trial  to  the 
admissibility  of  the  evidence  in 
proof  that  the  defendant  made  a 
parol  agreement  to  insure  the 
plaintiff  and  violated  it.  The  com- 
plaint could  be  amended  only  at 
a  time  which  would  give  the  de- 
fendant a  right  and  opportunity 
to  meet  by  proof  the  allegations 
made  against  it.  Romeyn  v.  Sickles, 
108  N.  Y.  650;  Lamphere  v. 
Lang,  213  N.  Y.  585;  Audley  v. 
Townsend,  126  App.  Div.  431). 
Moreover,  it  was  error  to  permit 
at  the  trial  an  amendment  which 
changed  substantially  the  claim 
made  in  the  complaint.  (Dexter 
V.  Ivins,  133  N.  Y.  551;  Spies  v. 
Lockwood,  40  App.  Div.  296;  Code 
of  Civil  Procedure,   §   723)." 


Sec.  l.J    Facts  Constituting  the  Cause  of  Action.  335 

McDaniel,  is  a  physician  and  surgeon,  and  was  employed  by  the 
defendant  to  perform  services  for  him  as  such,  which  he  did  at 
the  special  instances  and  request  of  the  defendant,  and  the  nature 
of  the  services  performed  are  then  described ;  that  for  such  serv- 
ices defendants  is  justly  indebted  to  him  in  the  sum  of  $2,855 
over  and  above  all  payments;  that  the  plaintiff  has  demanded 
payment  from  the  defendant,  but  he  has  refused  to  pay  the  same. 
The  complaint  also  avers,  that  defendant  is  indebted  upon  a 
promissory  note,  which  is  set  out.  When  the  case  was  called 
for  trial,  on  motion  of  the  counsel  for  the  plaintiff,  the  name  of 
Wilkins,  the  assignee  of  McDaniel,  was  substituted  as  plaintiff. 
The  plaintiff  recovered  judgment;  defendant  moved  for  a  r.ew 
trial,  which  was  denied,  and  he  appeals. 

The  first  error  assigned  is  that  the  complaint  does  not  state 
facts  sufficient  to  constitute  a  cause  of  action,  because  that  por- 
tion of  the  complaint  which  sets  forth  the  claim  for  professional 
services  does  not  aver  any  promise  to  pay,  or  that  the  servces 
were  of  any  value.  We  think  the  complaint  in  this  respect  suffi- 
cient. It  follows  substantially  the  form  of  a  count  in  debt,  un- 
der the  old  system  of  pleadings.  By  transposing  the  averments, 
it  can  then  be  read  in  this  wa}^ :  that  the  defendant  was  at  a 
certain  time  indebted  to  the  plaintiff,  in  a  certain  sum  for  pro- 
fessional services  rendered  by  the  plaintiff  at  the  special  instance 
and  request  of  the  defendant.  The  promise  to  pay,  alleged  in 
the  common  counts  in  assumpsit,  was  a  mere  conclusion  of  law 
from  the  facts  stated,  and  as  the  new  code  onty  requires  the 
facts  to  be  stated,  they  are  sufficient  without  setting  forth  the 
conclusions  of  law  arising  from  those  facts.^  But,  even  if  the 
complaint  was  in  this  respect  defective,  it  is  too  late  to  make 
the  objection  after  verdict.     It  should  be  made  by  demurrer. 

3  Accord:      Farron   v.   Sherwood,  July,  1872,  was  indebted  to  plain- 

17  N.  Y.  227  ante,  p.  41.     Higgins  tiff  in  the  sum  of  $298.42,  balance 

V.  Germaine,  1  Mont.  230.     But  see  on    his    settlement    as    treasurer." 

Eailroad  Co.  v.  Kimmel,  58  Mo.  83,  And   the   court   said:      "The    peti- 

iu  which  the  petition  alleged  that  tion  in  this  case  is  defective  in  its 

the  defendant  was  plaintiff 's  treas  omission   to   state   the   defendants' 

urer,  etc.,  and  that  "He,  as  treas-  promise,  which,  though  implied  in 

urer  of  plaintiff,  on  final  settle-  law,  must  be  pleaded  as  a  fact." 
ment,    on   to-wit,   the    5th    day    of 


336  The  Complaint.  [Chap.  III. 

Osgood  V.  Davis,  5  Cal.  453;  Suter  v.  Cox,  id.  415;  Garcia  v. 
Satrustegui,  4  id.  244.    *    *    * 

Judgment  reversed.^ 


BOWEN  V.  EMERSON. 

Supreme  Court  of  Oregon,  1869.    3  Ore.  452. 

Upton,  J.  The  objection  that  the  complaint  does  not  state 
facts  sufficient  to  constitute  a  cause  of  action  is  not  waived  by 
failing  to  demur.     (Code,  sec.  70.) 

The  complaint  states  that  "on  or  about  the  eighteenth  day  of 
February,  1868,  plaintiffs  sold  and  delivered  to  the  defendant 
4,000  pounds  of  flour,  and  that  the  same  was  worth  $212."  It 
does  not  show  that  the  defendant  undertook  or  became  obligated 
to  pay  for  the  flour  within  a  designated  time,  or  within  a  rea- 
sonable time,  or  when  requested;  nor  that  the  time  of  payment 
had  arrived  before  the  commencement  of  the  action.  For  aught 
that  appears  from  the  facts  stated,  the  property  may  have  been 
sold  on  credit,  the  time  of  which  has  not  yet  expired ;  or  it  may 
have  been  sold  and  delivered  to  the  defendant  upon  the  request 
and  credit  of  another,  with  a  full  understanding  that  defendant 
was  not  to  pay  for  it.  It  is  assumed  in  argument  that  com- 
plaints like  the  one  under  consideration  are  sustained,  by  adju- 
dications in  other  states,  under  codes  similar  to  ours,  and  par- 
ticular reference  is  made  to  the  state  of  New  York.  A  careful 
examination  of  the  cases  cited  in  support  of  this  proposition  will 
show  that  it  is  not  correct.  The  decisions  in  some  of  the  cases 
are  based  on  special  statutory  provisions  not  contained  in  our 
code.  For  an  instance  the  code  of  New  York,  section  162,  pro- 
vides, that  "in  an  action  or  defense  founded  upon  an  instrument 
for  the  payment  of  money  only,  it  shall  be  sufficient  for  a  party 
to  give  a  copy  of  the  instrument,  and  to  state  that  there  is  due 
him  thereon  from  the  adverse  party  a  specified  sum,  which  he 
claims."  Precedents  are  found  following  this  statute  which  do 
not  state  facts  only,  but  which  state  conclusions.  The  same  is 
true  of  other  special  provisions  of  statute.     Cases  predicated 

4  The  judgment  was  reversed  for  error  in  the  admission  of  evidence. 


Sec.  1.]   Facts  Constituting  the  Cause  op  Action.  337 

upon  special  provisions  not  contained  in  our  code  furnisli  but 
little  assistance  in  this  investigation.  Fortunately,  our  code  con- 
tains but  few  special  provisions  on  the  subject  of  pleadings  that 
amount  to  a  departure  from  the  general  rule,  that  the  complaint 
shall  contain  a  plain  and  concise  statement  of  the  facts  consti- 
tuting the  cause  of  action.  Attempts  to  simplify  by  making 
special  provision  for  particular  cases  or  classes  of  cases  tend  to 
complicate  the  system  and  to  confuse,  rather  than  simplify,  the 
practice.  They  are  generally  a  means  of  annoyance  to  the  prac- 
titioner, and  of  delay  and  expense  to  parties.  Every  experi- 
enced pleader  knows  that  there  is  nothing  more  difficult  to  the 
young  practitioner,  or  that  taxes  more  the  memory  of  those  who 
have  experience,  than  to  be  compelled  to  conform  to  special 
statutes  in  pleading.  Some  of  the  cases  cited  purport  to  be 
based  upon  the  general  rule.  The  most  prominent  among  them 
is  that  of  Allen  v.  Patterson,  7  N.  Y.  476.  The  opinion  in  that 
case,  it  must  be  conceded,  is  quite  out  of  the  general  current  of 
authority,  and  it  is  difficult  to  reconcile  it  with  the  numerous 
decisions  in  the  same  state  that  announce  and  reiterate  the  rule 
that  the  code  requires  facts  to  be  stated,  and  not  the  conclusions 
that  result  from  the  facts.  The  opinion  assumes,  without  argu- 
ment and  without  citing  any  authority  relating  to  the  construc- 
tion of  any  modern  code,  that  the  statement  that  the  defendant 
is  indebed  to  the  plaintiff  in  a  certain  sum  is  the  statement  of  a 
fact,  and  with  equal  brevity  it  reverses  the  long  settled  rule  that 
"if  the  meaning  of  the  words  be  equivocal,  they  shall  be  con- 
strued most  strongly  against  the  party  pleading  them."  The 
statement  that  the  defendant  is  indebted  to  the  plaintiff  is  sub- 
stantially the  conclusion  to  be  found  by  the  jury  at  the  end  of 
the  investigation.  (Lienan  v.  Lincoln,  2  Duer  670;  Drake  v. 
Cockraft,  4  E.  D.  Smith  34;  Seely  v.  Engell,  17  Barb.  530;  Levy 
V.  Bend,  1  E.  D.  Smith  169.) 

It  is  not  necessary  in  this  case  to  determine  to  what  extent 
the  case  of  Allen  v.  Patterson  should  be  considered  law,  because 
the  complaint  in  this  case  does  not  show,  by  stating  either  facts 
or  conclusions,  that  the  defendant  is  indebted.  The  case  of  Far- 
ron  V.  Sherwood,  3  Smith  229,  states  the  following  rule,  which 
seems  entirely  consistent  with  the  enactments  of  the  code:  "It 
was  not  necessary  to  state  in  terms  a  promise  to  pay ;  it  was  suf- 
ficient to  state  facts  showing  the  duty  from  which  the  law  im- 
plies a  promise."    A  fault  with  the  complaint  in  this  case  is, 


338  The  Complaint.  tCnAP.  III. 

that  it  neither  states  a  promise  to  do  any  certain  act  at  any 
specified  time,  nor  states  facts  from  which  a  duty  to  so  neces- 
sarily arises,  or  from  which  a  promise  is  necessarily  inferred. 
It  is  not  probable  that  any  method  of  pleadingr,  in  actions  for 
money  due  upon  contract,  will  ever  be  discovered,  that  is  more 
simple  and  easy  in  practice,  or  better  calculated  to  apprise  the 
court  and  the  parties  of  the  ground  and  nature  of  the  action, 
or  more  likely  to  leave  a  clear  and  concise  record  of  what  has 
been  done  than  that  which  is  now  prescribed  in  the  code.  Not- 
withstanding this  conceded  truth,  we  sometimes  meet  with 
pleadings  in  this  class  of  actions  that  neither  conform  to  the 
common  law  nor  to  the  requirements  of  the  code.  In  actions 
for  money  due  on  contract,  the  common  law  required  a  concise 
statement  of  the  facts,  and  in  some  particulars  the  employment 
of  technical  language ;  the  code  requires  a  plain  and  concise 
statement  of  the  facts.  In  other  words,  the  common  law  re- 
quired the  facts  to  be  stated  concisely,  and  sometimes  in  tech- 
nical language;  the  code  requires  the  facts  to  be  stated  con- 
cisely, and  in  plain  or  ordinary  language.  In  this  class  of 
actions  the  pleader  is  required  to  state  the  facts  that  show  that 
a  contract  existed  between  the  parties,  and  that  it  has  been 
broken,  and  in  what  particular,  and  the  amount  of  damages  the 
breach  has  caused.  Facts  only  must  be  stated,  as  contradistin- 
guished from  the  law,  from  argument,  from  conclusions,  and 
from  the  evidence  required  to  prove  the  facts.  (Coryell  v.  Cain, 
16  Cal.  571.) 

The  complaint  does  not  in  this  case  state  facts  sufficient  to 
constitute  a  cause  of  action. 

Judgment  reversed. 


GRANNIS  V.  HOOKER. 
Supreme  Court  of  Wisconsin,  1871.    29  Wis.  65. 

Action  to  recover  money  received  by  the  defendant  to  plain- 
tiff's use. 

The  complaint  alleges,  in  general  terms,  the  receipt  of  $53-5, 
by  the  defendant  to  the  plaintiff's  use,  demand  of  payment,  and 
a  refusal  to  pay  over  the  same,  or  any  part  thereof. 

The  answer  is  a  general  denial. 


Sec.  1.]   Facts  Constituting  the  Cause  op  Action.  339 

In  his  opening  at  the  trial,  the  plaintiff's  attorney  stated  the 
facts  which  he  expected  to  prove,  showing  that  the  plaintiff  was 
induced  to  pay  over  to  the  defendant  the  money  sued  for,  by 
means  of  certain  false  and  fraudulent  representations  made  to 
him  by  the  latter,  relative  to  the  purchase  of  oil  lands  for  a 
company  of  which  he  was  a  member. 

The  defendant  objected  to  the  admission  of  any  evidence  un- 
der the  complaint,  on  the  ground  that  it  does  not  state  facts  suf- 
ficient to  constitute  the  cause  of  action  stated  by  the  plainiff's 
counsel  in  the  opening. 

The  objection  was  sustained,  and  judgment  of  non-suit  en- 
tered; from  which  the  plaintiff  appeals. 

Cole,  J.  The  question  arising  in  this  case  is  really  whether 
the  complaint  states  a  cause  of  action.  The  complaint  contains 
what,  under  the  former  system  of  pleading,  would  be  called  a 
count  for  money  had  and  received.  On  the  trial,  the  attorney 
of  the  plaintiff  made  a  statement  of  facts  to  the  court  and  jury 
out  of  which  the  action  arose,  and  then  proceeded  to  support 
the  issue  on  the  part  of  the  plaintiff  by  calling  and  having 
sworn  a  witness.  Whereupon  the  defendant  objected  to  any  evi- 
dence being  given  under  the  complaint,  on  the  grounds  that  it 
did  not  state  facts  sufficient  to  constitute  a  cause  of  action.  This 
objection  was  sustained.  The  case  therefore  stands  in  the  same 
attitude  that  it  would  on  a  general  demurrer  to  the  complaint. 

We  are  inclined  to  hold  the  complaint  sufficient  on  demurrer. 
According  to  the  statement  made  in  his  opening  by  the  plain- 
tiff's counsel,  the  defendant  procured  the  money  sued  for  by 
means  of  fraud  in  an  oil  land  speculation.  It  is  claimed  by  the 
defendant  that  all  the  facts  in  respect  to  the  alleged  fraud 
should  have  been  distinctly  stated  in  the  complaint,  otherwise 
the  plaintiff  is  not  entitled  to  prove  them.  On  the  othei-  hand,  it 
is  claimed  that  all  it  is  necessary  the  complaint  should  contain  is 
substantially  an  allegation  that  the  defendant  has  received  a 
certain  amount  of  money  to  the  use  of  the  plaintiff,  as  in  the 
old  form  of  a  declaration  in  indebitatus  assumpsit.  We  are  in- 
clined to  sanction  this  latter  view,  and  to  hold  that  the  facts, 
which,  in  the  judgment  of  law,  create  the  indebtedness  or  lia- 
bility need  not  be  set  forth  in  the  complaint.  If  the  complaint 
does  not  state  with  sufficient  certainty  the  facts  in  respect  to  the 
defendant's  obtaining  the  money  from  the  plaintiff,  the  better 
practice  is  to  move  to  have  the  pleading  made  more  definite  and 


340  The  Complaint.  [Chap.  III. 

certain.  But  we  really  do  not  see  any  more  reason  for  requiring 
the  complaint  to  state  all  the  facts  and  circumstances  about  the 
manner  the  defendant  obtained  or  received  possession  of  money 
which  in  equity  and  good  conscience  he  ought  to  pay  over  to  the 
plaintiff,  than,  in  case  of  a  payment  or  loan  of  money,  to  re- 
quire the  pleading  to  contain  all  the  facts  in  respect  to  such  loan 
or  payment.  A  complaint  alleging  that  the  defendant  was  in- 
debted to  the  plaintiffs  in  a  specified  sum  for  goods  sold  and  de- 
livered to  the  defendant  at  his  request,  and  that  such  sum  was  ' 
due,  was  held  to  be  sufficient  on  demurrer  in  Allen  v.  Patterson, 
7  N.  Y.  476.  Also  a  complaint  to  recover  for  money  lent  to  and 
paid,  laid  out  and  expended  for  the  defendant,  at  his  request, 
was  held  sufficiently  definite  and  certain  on  motion  in  Cudlipp 
V.  Whipple,  4  Duer  610.  The  statement  of  the  fact  showing 
that  the  defendant  had  received  money  to  the  use  of  the  plain- 
tiff, which  he  was  bound  to  pay  over  to  him,  was  of  the  most 
general  character,  in  Bates  v.  Cobb,  5  Bosworth  29;  Adams  v. 
Holley,  12  How.  Pr.  326 ;  Betts  v.  Bache,  14  Abb.  Pr.  R.  279 ; 
Sloman  v.  Schmidt,  8  do.  5 ;  Goelth  v.  White,  35  Barb.  R.  76, 
and  yet  the  actions  were  sustained. 

The  case  of  Lienan  v.  Lincoln,  2  Duer  670,  is  cited  by  the  de- 
fendant's counsel  in  support  of  the  position  that  a  general  alle- 
gation in  a  complaint  that  the  defendant  has  received  money  to 
the  use  of  the  plaintiff  is  bad  on  demurrer.  But  a  jnst  criticism 
upon  this  case  will  be  found  in  note  4,  p.  213,  Tiff.  &  Smith,  N. 
Y.  Prac.  The  editor  says  that,  although  the  head  note  in  Lienan 
V.  Lincoln,  states  such  a  doctrine,  yet  that  the  complaint  there 
alleged  that  the  defendant  was  indebted  to  the  plaintiff's  as- 
signor "for  moneys,  notes,  and  effects  before  that  time  had  and 
received,"  while  the  account  annexed  showed  that  more  than  all 
the  balance  claimed  consisted  of  promissory  notes  received  by 
the  defendant,  and  there  was  no  allegation  that  these  notes  had 
been  paid  so  as  to  render  the  defendant  liable  for  their  amount. 
In  the  case  before  us  it  is,  in  substance,  averred  that  the  de- 
fendant received  from  the  plaintiff  five  hundred  and  thirty -five 
dollars  to  the  use  of  the  plaintiff;  that  the  plaintiff  has  de- 
manded the  payment  thereof;  and  that  the  defendant  has  re- 
fused to  pay  the  same  or  any  part  thereof.  We  are  inclined  to 
hold  this  complaint  sufficient  in  substance.^ 

6  For  the  contrary  view,  that  the  v.  Pugh-Jenkins  Furniture  Co.,  L. 
facts  must  be  pleaded,  see  Moser      E.    A.    1918    F.    437,    annotated. 


Sec.  1.]    Facts  Constituting  the  Cause  of  Action.  341 

By  the  Court:    The  judgment  of  the  circuit  court  is  reversed, 
and  a  new  trial  ordered. 


NEW  YORK  NEWS  CO.  v.  NATIONAL  STEAMSHIP  CO. 

Court  of  Appeals  of  New  York,  1895.    148  N.  Y.  39. 

O'Brien,  J.     The  complaint  in  this  action  alleged  that  the 
defendant  was  indebted  to  the  plaintiff  in  the  sum  of  $591 .18,  a 
balance  due  from  defendant  for  work,  labor  and  services  in  ad- 
vertising for  and  at  tlie  special  instance  and  request  of  the  de- 
fendant.    The  defendant,  by  its  answer,  denied  this  allegation. 
The  plaintiff,  on  the  trial,  gave  proof  tending  to  establish  an 
agreement  between  the  parties  to  the  effect  that  the  plaintiff 
should  do  certain  advertising  for  the  defendant,  and  be  paid 
therefor  in  the  tickets  of  the  defendant;  that  plaintiff  did  per- 
form the  work  in  advertising,  and  had  received  thereon  a  cer- 
tain quantity  of  tickets,  but  leaving  still  due  the  amount  stated 
in  the  complaint ;  that  the  plaintiff  had  demanded  the  balance  of 
the  bill  from  the  defendant  in  tickets,  but  the  demand  was  re- 
fused.     The   plaintiff   claimed   that   these   facts   established    a 
money  indebtedness  from  the  defendant.    The  rule  in  this  state 
seems  to  be  that,  where  a  party  agrees  to  pay  a  specific  sum,  or, 
as  in  this  case,  the  value  of  the  services  in  some  specific  articles 
of  property,  and  upon  demand  refuses  or  fails  to  deliver  the 
property,  his  obligation  is  thereby  converted  into  one  for  the 
payment  of  money.    1  Sedg.  Dam.  (8th  ed.)   §  280;  Glcason  v. 
Pinney,  5  Cow.  152;  Smith  v.  Smith,  2  Johns.  235;  Brooks  v. 
Hubbard,  3  Conn.  58.    There  was  some  conflict  in  the  evidence 
as  to  the  facts,  but  the  court  submitted  all  the  questioiis  to  tlie 
jury,  and  the  verdict  must  be  taken  as  establishing  in  plaintiff's 
favor,  the  performance  of  the  work  at  the  price  alleged,  the 
agreement  to  pay  in  tickets,  and  the  refusal  to  do  so,  and  the 
consequent  obligation  to  pay  in  money. 

The  only  point  urged  by  the  defendant  in  support  of  the  ap- 
peal which  it  is  necessary  to  consider  is  the  contention  that  the 
plaintiff  set  out  in  the  complaint  one  cause  of  action  and  recov- 
ered upon  another  and  different  cause  of  action.  The  plaintiff 
has  stated  the  facts  constituting  the  cause  of  action,  not  as  they 


342  The  Complaint.  [Chap.  III. 

actually  existed,  but  according  to  their  legal  effect.  In  most 
cases  either  mode  of  pleading,  at  the  option  of  the  party,  is  cor- 
rect. Bennett  v.  Judson,  21  N.  Y.  238 ;  Farron  v.  Sherwood,  17 
N.  Y.  227 ;  Barney  v.  Worthington,  37  N.  Y.  116.  In  pleading 
facts  according  to  their  legal  effect,  it  may  sometimes  happen 
that  the  opposite  party  is  left  in  the  dark  as  to  the  proof  which 
he  may  be  required  to  meet  at  the  trial,  but,  ordinarily,  this  dif- 
ficulty can  be  avoided  by  motion,  when  necessary,  to  make  the 
pleading  more  definite  and  certain.  In  this  case,  if  the  defend- 
ant had  any  doubt  as  to  the  identity  of  the  claim  that  it  was 
required  to  defend,  a  simple  demand  for  a  bill  of  particulars,  or 
a  motion,  would  make  everything  clear.  The  material  part  of 
the  complaint  was  the  allegation  of  a  money  indebtedness  by 
defendant  to  plaintiff,  and  that  allegation  was  supported  by 
proof  of  the  agreement  to  perform  the  Avork  for  payment  in 
tickets,  the  performance  of  the  work,  and  the  refusal  to  deliver 
the  tickets.  In  other  words,  the  fact  pleaded,  according  to  its 
legal  effect,  was  proved  by  proof  of  the  facts  as  they  existed. 
So  there  was  no  variance^  that  the  defendant  can  complain  of. 
The  other  questions  discussed  relate  to  the  proofs  given.  It  is 
not  very  clear,  but  its  sufficiency  and  interpretation  were  for 
the  jury.  The  judgment  must,  therefore,  be  affirmed.  All 
concur. 

Judgment  affirmed. 


POTTER  V.  CHICAGO  &  NORTHWESTERN  RY.  CO. 

Supreme  Court  of  Wisconsin,  1866.     20  W/s.  533. 

This  was  an  action  by  the  administrator  of  Frances  L.  Bishop 
against  the  defendant,  for  negligently  causing  the  death  of  said 

6  For  the  use  of  a  common  count  The  common  counts  are  not  ap- 

to  recover  the  contract  price  where  propriate    for    a    cause    of    action 

the  special  contract  has  been  per-  arising    from    the    breach    of    the 

formed,    see    Farron    v.    Sherwood,  conditions  of  a  penal  bond,  Gallup 

17  N.  T.  227,  ante,  p.  41.  v    Jeffrey,  86  Conn.  308,   (1912). 

For   a   common   count   for   goods  For  a  collection  of  cases  on  the 

sold   and   delivered    on   the   theory  use    of    the    common    counts,    see 

of  a  waiver  of  tort,  see  Walker  v.  Weber  v.  Lewis,   34  L.  E.  A.    (N, 

Duncan,  68  Wis.  624,  ante,  p.  48.  S.)   364,  (1910),  annotated, 


Sec.  1.]    Facts  Constituting  the  Cause  of  Action.  343 

Frances,  a  child  about  ten  years  old.  who  with  her  raother,  was 
a  passenger  on  the  defendant's  train  from  Chicago  to  Fort  At- 
kinson. The  complaint  alleged  that  the  defendant  so  negli- 
gently and  unskilfully  conducted  itself  in  the  management  of 
said  train,  that  when  the  same  arrived  at  Fort  Atkinson,  it  did 
not  stop  the  same  long  enough  to  permit  said  Frances  or  her 
mother  to  get  off  the  ear  in  which  they  were  traveling,  but  care- 
lessly started  said  train^  when  they  Avere  getting  off,  so  quickly 
and  suddenly  that  the  said  Frances,  while  attempting  to  get  off, 
was  thrown  off  the  car,  or  the  platform  of  the  car,  and  run  over 
by  the  train,  and  instantly  killed.  The  defendant  demurred  to 
the  complaint  on  the  ground  that  it  did  not  state  facts  sufficient 
to  constitute  a  cause  of  action ;  and  appealed  from  an  order 
overruling  the  demurrer. 

Downer,  J. — It  is  contended  that  the  complaint  is  insufficient 
because  it  does  not  aver  that  the  deceased,  at  the  time  of  the 
fatal  accident,  was  in  the  exercise  of  ordinary  care,  or  was 
free  from  negligence  on  her  part.  The  complaint  alleges  tliat 
the  injury  was  caused  by  the  negligence  of  the  defendant.  Tlie 
complaint  in  this  respect  is  according  to  most  of  the  precedents 
of  declarations,  English  and  American.  There  are,  however, 
precedents  with  averments  in  form  that  the  plaintiff  was  in  the 
exercise  of  ordinary  care,  or  was  free  from  negligence  on  his 
part.  In  Gough  v.  Bryan,  2  J\I.  &  W.  770,  the  declaration,  as 
to  the  particular  matter  under  consideration,  was  in  the  form 
of  the  complaint  before  us,  and  was  for  driving  the  coach  of  the 
defendant  against  the  plaintiff's  carriage  and  thereby  injuring 
his  sons.  The  defendant  plead  the  general  issue,  and  also  a 
special  plea  setting  up  the  plaintiff's  negligence.  On  demurrer 
to  the  special  plea,  it  was  held  bad,  as  amounting  to  the  general 
issue.  In  the  case  of  Bridge  v.  The  Grand  Junction  Railway,  3 
M.  &  W.  244,  the  declaration  was  in  the  same  form;  and  on  a 
demurrer  to  a  special  plea  setting  up  that  the  injury  was  caused 
by  the  negligence  both  of  the  plaintiff  and  defendant,  it  was 
held  that  the  plea  was  bad  because  it  amounted  to  the  general 
issue ;  and  also  bad  in  substance,  because  it  was  not  sufficient  to 
aver  that  there  was  negligence  on  the  part  of  the  plaintiff,  but 
the  defendant  must  also  aver  that  the  plaintiff,  by  ordinary  care, 
could  have  avoided  the  consequences  of  the  defendant's  negli- 
gence. The  case  of  Butterfield  v.  Forrester,  11  East  60,  was 
cited  as  authority  to  that  effect.    It  was  also  said  by  Park,  B., 


344  The  Complaint.  [Chap.  III. 

that  even  if  the  plea  had  contained  such  allegation,  it  would 
still  be  equivalent  to  not  guilty.  I  do  not  see  how  this  could  be, 
unless  the  general  denial  put  in  issue  the  want  of  ordinary  care, 
or  the  negligence,  of  the  plaintiff  as  well  as  that  of  the  de- 
fendant. If  the  declaration  in  each  of  these  cases  had  been 
defective,  the  demurrer  to  the  special  plea  in  each  case  would 
have  reached  back  to  the  declaration  as  the  first  defective  plead- 
ing; but  it  did  not  occur  either  to  the  counsel  or  the  court  that 
there  was  any  defect  in  the  declaration  in  either  case.  And 
we  have  not  been  referred  to  any  case  where  such  declaration 
has  been  held  defective.  In  many  of  the  cases  (a  number  of 
which  have  been  cited  by  counsel) ,  where  the  question  has  arisen 
whether  the  plaintiff  was  bound,  in  order  to  make  out  a  prima 
facie  case,  to  prove  that  he  exercised  ordinary  care,  the  declara- 
tion was  in  the  form  of  that  in  the  case  before  us.  The  averment 
that  the  death  of  Frances  L.  Bishop  was  caused  by  the  negli- 
gence of  the  defendant,  must,  we  think,  be  regarded  in  legal 
effect  the  same  as  though  it  had  been  averred  that  the  sole 
immediate'^  cause  thereof  was  the  negligence  of  the  defendant. 
It  is  unnecessary  for  us  to  decide  the  question,  so  much  discussed 
by  counsel,  whether  the  plaintiff,  at  the  trial,  to  make  out  a 
prima  facie  case,  must  prove  both  the  negligence  of  the  defend- 
ant and  ordinary  care  on  the  part  of  the  deceased ;  for  whatever 
may  be  our  opinion  on  that  subject,  we  must  hold,  in  accordance 
with  long  and  well  established  practice,  that  the  complaint  is 
sufficient.® 

Judgment  affirmed. 

t  And  so  in  Lee  v.  Troy  Gas  Co.,  Wagner,  J.,  in  Thompson  v.  North 

98  N.  Y.  115.  Missouri    E.    R.    Co.,    51    Mo.    190, 

For    the    view    that    an    express  (1873):      *     •     * 

allegation  negativing  contributory  "The  question  as  to  the  burden 

negligence  is   necessary,  see   Jemi-  of   proof   in   respect   to   plaintiff's 

son  V.   Myrtle  Lodge,  158   la.  264,  freedom    from    negligence,    and    aa 

(1915);     a    number    of    the    cases  to  whether  he  should  make  the  af- 

have    been    collected    in    note    to  firmative   averment,   that   he   exer- 

Oklahoma  City  v.   Reed,   33   L.  R.  cised    proper    care    and    was    free 

A.   (N.  S,),  loe.  1152.  from    negligence,    is    new    in    this 

8  In  a  majority  of  states  where  Court,    and    is    involved    in    uneer- 

the  question  has  arisen,  the  courts  tainty  by  the  conflicting  and  eva- 

have  taken  the  view  that  contrib^  sive    decisions    of    the    Courts    of 

utory  negligence   is   an  affirmative  other   States.     While   some   Courts 

defense    and    hence    need    not    be  hold  tliat  he  must  allege  and  affirm- 

jiegatived  in  the  complaint.  atively  establish  that  he  was  free 


Sec.  1.]   Facts  Constituting  the  Cause  of  Action.  345 

FIELD  V.  C.  R.  I.  &  P.  RY.  CO. 

Supreme  Court  of  Missouri,  1882.    76  Mo.  614. 

Henry,  J.  This  is  a  suit  to  recover  damages  for  the  destruc- 
tion of  a  growing  crop  of  corn  on  plaintiff's  land,  and,  after  re- 
lating plaintiff's  ownership  of  the  land,  and  that  defendant  had 
for  years  past  been  using  a  strip  of  said  land  for  a  right  of  way 
and  running  its  train  of  cars  over  it,  the  cause  of  action  is  thus 
stated :  ' '  That  defendant  failed  to  keep  its  road  in  such  condi- 
tion as  to  prevent  injury  to  the  plaintiff;  but  negligently  and 
carelessly  failed  to  make,  and  keep  open,  proper  ditches  for  the 
purpose  of  leading  the  water  off  the  plaintiff's  land;  and  in  con- 
sequence of  the  careless  and  negligent  conduct  of  the  defendant, 
as  aforesaid,  the  water  was  dammed  up,  and  caused  to  flow  back, 
and  over  the  land  of  plaintiff,  and  destroy  his  growing  crop,  to 
his  damage,  etc."  The  defendant  objected  to  the  introduction 
of  any  evidence  because  no  cause  of  action  was  stated  in  the  peti- 
tion, but  the  court  overruled  his  objection,  and  on  the  trial  the 


from  culpable  negligence  contribut- 
ing to  the  injury,  others  hold  that 
his  negligence  is  matter  of  defense, 
of  which,  the  burden  of  pleading 
and  proving  rests  upon  the  defend- 
ant. 

In  my  view  the  latter  is  the 
correct  doctrine.  Negligence  on 
the  part  of  the  plaintiff  is  a  mere 
defense,  to  be  set  up  in  the  an- 
swer and  shown  like  any  other  de- 
fense, though  of  course  it  may  be 
inferred  from  the  circumstances 
proved  by  the  plaintiff  upon  the 
trial.  It  seems  to  be  illogical  and 
not  required  by  the  rules  of  good 
pleading,  to  compel  a  plaintiff  to 
aver  and  prove  negative  matters 
in  cases  of  this  kind.  In  an  or- 
dinary complaint  upon  negligence, 
it  is  not  necessary  to  aver  that 
the    plaintiff   has    taken   due    care. 

It  is  true  the  action  may  be 
deffated  by  showing  that  the  plain- 
tiff was  guilty  of  such  contributory 


negligence  as  would  preclude  a 
recovery,  but  that  is  a  question 
for  the  jury,  to  be  determined 
upon  the  evidence,  and  not  a  mat- 
ter of  pleading.  I  cannot  see  what 
possible  ground  of  distinction  there 
can  be  between  the  rule  forbid- 
ding a  plaintiff  to  recover  when  his 
negligence  has  contributed  to  the 
injury,  and  that  which  prevents  a 
recovery  for  a  fraud  or  trespass 
when  the  parties  are  in  pari  de- 
licto. Yet  it  would  be  diflScult  to 
find  a  case  in  which  it  has  been 
held  that  the  plaintiff  in  such  ac- 
tions must  assume  the  burden  of 
showing    himself   free    from    fault. 

(Shearm.  &  Eedf.  on  Negl.  p.  47)." 
*      »      * 

And  so  in  Clark  v.  Ky.,  28  Minn. 
69,  ante,  p.  304. 

For  a  collection  of  the  cases 
following  this  view,  see  33  L.  K. 
A.   (N.  S.)  loc.  1157. 


23 


346  The  Complaint.  [Chap.  III. 

plaintiff  obtained  a  judgment  from  which  the  defendant  ap- 
peals. In  his  motion  in  arrest,  defendant  also  made  the  objec- 
tion that  no  cause  of  action  was  stated  in  the  petition. 

The  complaint  in  the  petition,  and  the  only  cause  of  action  al- 
leged, is  "that  defendant  failed  to  keep  its  road  in  such  condi- 
tion as  to  prevent  injury  to  plaintiff,  but  negligently  failed  to 
make,  and  keep  open,  proper  ditches  for  the  purpose  of  leading 
the  water  off  of  plaintiff's  land."  Placing  the  most  favorable 
construction  upon  the  petition,  which  is  to  take  it  as  alleging 
"that  defendant  failed  to  keep  its  road  in  such  condition  as  to 
prevent  injury  to  plaintiff's  land,  by  negligently  and  carelessly 
failing  to  make,  and  keep  open,  proper  ditches  to  lead  the  water 
off  plaintiff's  land,"  it  does  not  state  a  cause  of  action.  It  is  not 
alleged  that  the  railroad-bed  was  raised  above  the  surface  of 
plaintiff's  land  through  which  it  passed,  and  if  on  a  level  with 
that  surface  it  could  not  have  obstructed  the  flow  of  surface 
water.  If,  on  the  other  hand,  it  made  an  embankment  M^here  it 
ran  through  his  land,  the  statute  only  requires  ditches  sufficient 
to  carry  off  the  surface  water,  along  the  sides  of  the  embank- 
ment ;  and  we  know  of  no  statute  or  principle  of  the  common  or 
civil  law,  which,  on  the  facts  stated  in  this  petition,  requires  the 
railroad  company  to  open  ditches  for  the  purpose  of  draining 
the  land  of  an  adjoining  proprietor.  There  is  no  allegation  that 
the  company  constructed  its  road  so  as  to  obstruct  the  flow  of 
surface  water  and  throw  it  back  upon  the  plaintiff's  land,  and 
failed  to  make  and  keep  open  the  ditches  required  by  that  stat- 
ute, along  the  side  of  its  road. 

No  facts  are  alleged  in  the  petition  which  show  any  legal  ob- 
ligation upon  the  defendant  to  do  what  the  plaintiff  complains 
of  its  omission  to  do,  and,  when  a  suit  is  for  a  breach  of  duty, 
the  facts  out  of  which  it  arises  must  be  pleaded.^ 

If  the  nature  of  the  complaint  can  be  conjectured  from  the 
plaintiff's  petition,  it  is  of  an  obstruction  of  the  flow  of  surface 
w^ater.  It  is  an  insufficient  statement  of  a  cause  of  action  in 
that  view. 

On  the  trial,  plaintiff  was  permitted,  over  defendant's  objec- 

9  And    so    in    Ey.    Co.    v.    Light-  of  the  failure  of  the  defendant  to 

heiser,  163  Ind.  247,  (1901),  where  place   a  brakeman  on  the  rear  car 

the   plaintiff,   an   employee    of   the  to  give  warning,  etc.,  without  stat- 

railroad    company,    was    struck   by  ing  any  facts  which  would  impose 

a   backing    train,    and    complained  a  duty  to  take  such  precaution. 


Sec.  1.]    Facts  Constituting  the  Cause  op  Action.  347 

tion,  to  prove  the  obstruction  of  a  ninning  stream,  and  yet  no 
one  would  construe  the  petition  as  stating  such  a  cause  of  action. 
The  plaintiff  must  state  the  facts  which  constitute  his  cause  of 
action.  He  cannot  state  one  and  prove  another,  nor,  if  he  states 
none,  can  he  supply  the  defects  in  his  petition  by  evidence  at 
the  trial. 

All  concur  in   reversing  the  judgment   and  remanding   the 
cause. 


BARKER  V.  H.  &  ST.  J.  R.  R.  CO. 

Supreme  Court  of  Missouri,  1886.    91  Mo.  86. 

Ray,  J.  The  petition  on  which  this  cause  was  tried  is  as  fol- 
lows:    "Plaintiff  states  that  upon  the  day  of ,  she 

was  lawfully  married  to  Edward  B.  Parker,  deceased,  late  of 
Buchannan  county,  and  at  the  times  hereinafter  mentioned  she 
was  the  wife  and  now  is  the  widow  of  said  deceased,  Edward 
B.  Barker. 

"Plaintiff  states  that  the  defendant  now  is,  and  at  the  times 
hereinafter  mentioned  was,  a  corporation,  etc.    *    *    * 

"That  the  defendant,  on  the  fifteenth  day  of  April,  1879,  by 
its  servants,  agents,  and  employees,  carelessly,  negligently,  un- 
skillfully,  and  recklessly,  ran  one  of  its  engines  and  trains  of 
cars  upon  and  over  the  said  Edward  B.  Barker,  and  thereby 
struck  and  inflicted  grievous  bodily  injury  upon  the  said  Ed- 
ward B.  Barker,  by  reason  of  which  the  said  Edward  B.  Barker 
was  then  and  there  instantly  killed. 

"Plaintiff  states  that  Edward  B.  Barker,  was  run  over  and 
killed,  as  aforesaid,  within  one  year  before  the  commencement  of 
this  suit,  and  at  a  point  on  the  defendant's  railroad  track  be- 
tween the  said  city  of  St.  Joseph,  and  the  said  town  of  Easton, 
about  one  mile  southeast  of  the  said  city  of  St.  Joseph." 

"Plaintiff  states  that  the  deceased,  Edward  B.  Barker,  was 
run  over  and  killed,  as  aforesaid,  by  the  defendant,  without  any 
fault  or  negligence  whatever  on  the  part  of  the  said  deceased." 

"Wherefore,  plaintiff  prays  judgment  against  defendant  for 
the  sum  of  five  thousand  dollars,  according  to  the  statute  in 


348  The  Complaint.  [Chap.  III. 

such  case  made  and  provided,  together  with  the  costs  of  this  ac- 
tion."   *    *    * 

The  trial  resulted  in  a  verdict  in  plaintiff's  favor,  for  the  sum 
of  five  thousand  dollars.  *  *  *  Judgment  was  entered  upon 
the  verdict,  and  the  case  appealed  to  this  court. 

The  plaintiff  and  her  deceased  husband  resided  near  defend- 
ant 's  tracks,  about  two  or  three  miles  from  St.  Joseph,  and  about 
eight  or  nine  o'clock,  in  the  morning  of  April  15,  1879,  the  plain- 
tiff's husband,  while  walking  along  the  track,  in  the  direction  of 
St.  Joseph,  and  about  one  hundred  yards  from  his  residence, 
was  run  over  and  killed  by  one  of  the  defendant's  passenger 
trains,  coming  from  the  east  and  going  towards  St.  Joseph.  This 
action  was  begun  in  the  Circuit  Court  of  Buchannan  county, 
April  9,  1880,  or  a  year,  lacking  a  few  days,  thereafter.  The 
object  of  the  action  was  to  recover  damages  for  the  husband's 
death,  occasioned,  as  alleged,  through  defendant's  negligence  in 
running  said  train.  In  the  view  we  take  of  a  controlling  ques- 
tion presented  by  the  record,  we  deem  the  foregoing  a  sufficient 
statement  of  the  case. 

It  wdll  be  observed  that  the  suit  was  instituted  more  than  six 
months  after  the  death  occurred,  but  within  the  year,  and  that 
there  is  no  averment  in  the  petition  that  there  w^re  no  minor 
children,  and,  we  may  further  add,  that  there  is  nothing  in  the 
evidence  or  record  that  discloses  whether  or  not  there  were  such 
minor  children.  The  statute  provides  that  such  damages  as  are 
here  sought  to  be  recovered  may  be  sued  for  "first  by  the  hus 
band  or  wdfe  of  the  deceased ;  or,  second,  if  there  be  no  husband 
or  wife,  or  he  or  she  fails  to  sue  within  six  months  after  such 
death,  then  by  the  minor  child  or  children  of  the  deceased;  or 
third,  if  such  deceased  be  a  minor,  and  unmarried,  then  by  the 
father  and  mother,  who  may  join  in  the  suit,  and  each  shall  have 
an  equal  interest  in  the  judgment ;  or,  if  either  be  dead,  then 
by  the  survivor."  R.  S.  1879,  sec.  2121.  Section  2125,  Revised 
Statutes,  provides  that  every  action  instituted  by  virtue  of  the 
preceding  section  of  the  chapter  shall  be  commenced  within  one 
year  after  the  cause  of  such  action  shall  accrue. 

It  is  contended,  for  the  appellant,  that  the  right  of  action  is 
vested,  and  only  remains  in  the  wife,  absolutely,  for  the  said 
period  of  six  months,  and  that  her  right  to  sue,  after  the  expira- 
tion of  the  six  months,  is  conditional  on  the  fact  w-hether  or  not 
there  are  minor  children,  and  that  the  petition  is  fatally  defec- 


Sec.  1.]    Facts  Constituting  the  Cause  of  Action.  349 

tive,  for  the  want  of  a  further  averment,  alleging  that  there 
were  no  minor  children.  On  the  other  hand,  it  is  contended,  for 
the  respondent,  that  the  provisions  of  the  statute,  as  to  the  time 
in  which  the  wife  may  bring  her  action,  are  not  conditions,  but 
are  in  the  nature  of  a  limitation,  only — that  they  merely  affect 
the  remedy,  and  limit  the  enforcement  of  the  right — and  that  the 
lapse  of  the  six  months  being  such  a  limitation,  it  was  not  neces- 
sary for  the  plaintiff  to  allege  the  non-existence  of  minor  chil- 
dren in  the  petition ;  but  that  the  same  was  a  defense  to  be 
pleaded  and  proved  by  the  defendant.  This  presents  the  con- 
trolling question,  to  which  reference  has  been  already  made. 

It  may  be  observed  that  damages  for  a  tort  to  the  person,  re- 
sulting in  death,  were  not  recoverable  at  common  law,  nor  could 
husband  or  wife,  parent  or  child,  recover  any  pecuniary  compen- 
sation therefor  against  the  wrongdoer.  Our  statute,  on  this  sub- 
ject, both  gives  the  right  of  action,  and  provides  the  remedy,  for 
the  death,  where  none  existed,  at  common  law,  and  where  an 
action  is  brought,  under  the  statute  it  can  only  be  maintained 
subject  to  the  limitation  and  conditions  imposed  thereby.  In 
conferring  the  right  of  action,  and  in  providing  such  remedy,  in 
designating  when,  and  by  whom,  suits  may  be  brought,  it  was,  as 
a  matter  of  course,  competent  for  the  legislature  to  provide  and 
impose,  such  conditions  as  it  might  deem  proper,  and  the  con- 
ditions thus  imposed  modify  and  qualify  the  right  of  recovery, 
or  form,  rather,  we  think,  a  part  of  the  right  itself,  and  upon 
which  its  exercise  depends.  In  the  statute  which  creates  the 
right  of  action,  and  in  the  same  section  in  which  the  statutory 
right  and  remedy  is  thus  conferred  upon  the  husband  or  wife,  it 
is  further  provided,  by  the  second  sub-division,  as  we  have  seen, 
that,  if  there  be  no  husliand  or  wife,  or  he  or  she  fails  to  sue  in 
six  months  after  the  death,  the  right  of  action  therefor  shall  be 
vested  in  the  minor  children  of  the  deceased,  if  there  be  such. 
This  provision  is  not,  we  think,  merely  a  limitation  or  bar  to  the 
remedy  of  the  wife,  but  is  a  bar  to  the  right  itself,  if  there  are 
minor  children,  and  the  existence,  or  non-existence  of  such  minor 
children  is  to  be  held,  we  think,  as  of  the  substance  of  the  right 
of  the  wife  to  sue  after  the  six  months  have  expired.  The  right 
of  the  husband  or  wife  to  sue  is  absolutely  for  and  during  the 
six  months  after  the  death.  Thereafter,  it  is  ^dthin  the  year,  as 
we  think,  a  conditional  right.  It  is  not  a  proviso,  exception,  or 
limitation,  enacted  in  a  separate  clause  or  section,  but  is  incor- 


350 


The  Complaint.  [Chap.  III. 


porated,  as  we  have  said,  in  the  statute  and  section  which  gives 
the  right  of  action  and  authorizes  her  to  sue  and  recover  the 
damages.  That  this  proviso,  or  condition,  is  something  more 
than  a  mere  limitation  upon  the  remedy  of  the  widow,  is,  we 
think,  more  apparent  from  a  further  consideration  of  the  sec- 
tion, and  the  other  clause  thereof.  For  example,  the  right  of  the 
parents  to  sue  under  the  third  sub-division  is  based  upon  the 
fact  whether  the  deceased  was  a  minor,  unmarried,  which  are, 
we  think,  conditions  precedent  to  a  recovery  on  the  part  of  the 
parents.  Suppose,  for  example,  that,  in  an  action  by  them, 
under  the  statute,  it  was  neither  averred  in  the  petition  nor 
proved  on  the  trial,  that  the  deceased  was  a  minor,  and  unmar- 
ried, could  a  recovery  be  had?  Again,  suppose,  for  example, 
the  minor  child  or  children  brought  the  action  within  six  months 
from  the  death;  or,  suppose  further,  that  such  minor  children 
instituted  suit  after  the  expiration  of  the  six  months,  and  it  was 
neither  alleged  in  the  petition  nor  shown  by  the  evidence,  that 
there  was  no  husband  or  wife,  or  that  the  husband  or  widow,  as 
the  case  might  be,  had  failed  to  sue  in  the  six  months. 

In  none  of  these  cases  could  a  recovery,  as  we  think,  be  prop- 
erly had ;  or  again,  suppose  that,  as  a  matter  of  fact,  there  are 
in  this  case,  minor  children,  and,  as  we  have  said,  there  is  noth- 
ing to  show  whether  there  are  or  not,  and  there  is,  we  think, 
no  presumption  of  law  or  fact  to  be  indulged,  as  to  whether 
there  are  or  not,  could  they  be  deprived  or  barred  of  their  right 
of  action,  expressly  conferred  upon  them  by  the  statute  and 
duly  brought  within  the  year,  by  a  recovery  on  the  part  of  the 
widow  in  an  action  brought  by  her  after  the  expiration  of  the 
six  months?  We  think  not.  31  Mo.  574.  So  in  the  case  now 
before  us,  where  the  action  is  brought  by  the  widow  after  the 
expiration  of  the  six  months,  her  right  to  maintain  the  same  is 
conditional  and  depends  on  the  non-existence  of  the  minor  chil- 
dren, a  material  and  necessary  fact,  as  we  think,  and  which  was 
not  alleged  or  proved.  Section  2125,  above  set  out,  is,  we  think, 
a  statute  containing  a  limitation  of  time  only,  and  applies  to 
the  remedy  or  enforcement  of  the  rights  conferred  by  the  dam- 
age act.  Its  existence  as  a  bar  depends,  not  upon  the  existence 
of  any  party,  or  upon  any  thing  else  beside  the  mere  lapse  of 
the  period  of  time  designated.  In  regard  to  such  statutes,  and 
other  statutes  of  limitations  of  like  import,  not  thus  coupled 
with,  or  annexed  to,  the  right  of  action,  the  grounds  urged  by 


Sec.  1.]   Facts  CoNsTiTtrTiNG  the  Cause  of  Action.  351 

respondent,  and  the  authorities  cited,  in  the  main  apply,  we 
think,  with  more  force.^® 

As  in  our  judgment  the  fact,  if  such  it  is,  that  there  was  no 
minor  child,  was  one  material  and  necessary  to  be  shown,  to  en- 
title the  plaintiff  to  recover  in  this  action,  which  was  begun 
after  the  six  months  had  expired,  and  as  there  was  no  evidence 
offered  in  that  })ehalf,  the  instruction  in  the  nature  of  a  de- 
murrer to  the  evidence,  asked  by  the  defendant  at  the  close  of 
the  evidence,  should  have  been  given.  And  in  the  absence  of 
the  proper  averment  in  the  petition,  and  in  the  failure  of  the 
proof  as  to  whether  there  were  such  minor  children,  we  feel  con- 
strained to  reverse  the  judgment  and  remand  the  cause.  Au- 
thorities are  not  wanting,  we  think  to  support  these  views.  Some 
of  them  are  referred  to  in  the  brief  of  appellant,  but,  as  we  are 
led  to  the  conclusion  we  have  reached,  by  a  construction  of  our 
statute  on  the  subject,  the  authorities  need  not  all  be  specially 
cited  or  quoted.  Railroad  v.  Hine,  Adm'r,  25  0.  St.  629,  634; 
Wood  on  Lim.  of  Acts,  sec.  9,  p.  23. 

Our  own  court  has  had  occasion  to  construe  the  statute  in 
question  (section  2121,  supra,)  in  cases  somewhat  kindred  to 
this.  In  the  case  of  Coover  v.  Moore,  31  Mo.  574,  576,  it  was 
held  that,  where  the  person  killed  left  minor  children,  if  the 
husband  or  wife  of  the  deceased  failed  to  sue  within  six  months 
after  the  death,  the  right  of  action  of  the  wife  or  husband  is 
barred  and  gone,  and  that  of  the  minor  children  vested  abso- 
lutely. It  is  further  said,  that  "there  being  thus  no  general 
right  of  recovery,  open  to  all  persons,  representing  the  estate 
of  the  deceased,  or  interested  in  his  life,  only  such  persons  can 
recover  in  such  time,  and  in  such  manner  as  is  set  forth  in  the 
statute."  *  *  *  In  statutory  actions  of  this  sort,  the  party 
suing  must  bring  himself  strictly  within  the  statutory  require- 
ments, necessary  to  confer  the  right,  and  this  must  appear  in 
his  petition ;  otherwise,  it  shows  no  cause  of  action.^ 

For  these  reasons,  the  judgment  of  the  circuit  court  is  re- 

10  See   Sharrow  v.  Inland  Lines,  brought  within  the  statutory  period. 

214   N.   Y.   101,    (1915),  construing  1  Followed   in    Chandler  v.   C.   & 

a    somewhat    similar    provision    of  A.  R.  R.  Co.,  251  Mo.  592,   (1913), 

the  New  York  Act,  as  an  ordinary  For  a   collection   of  the  cases,   see 

statute    of   limitations,   and   hence  Sharrow  v.  Inland  Lines,  L.  R.  A. 

that  the   complaint  need  not  show  1915,  E.  1192,  annotated, 
affirmatively   that   the   action   was 


352  The  Complaint.  [Chap.  III. 

versed  and  the  cause  remanded.    All  concur,  except  Sherwood, 
J.,  absent. 


KING  V.  OREGON  SHORT  LINE  R.  R.  CO. 

Supreme  Court  of  Idaho,  1898.    6  Idaho,  306. 

This  action  was  brought  by  the  respondent  to  recover  the 
value  of  four  head  of  cattle  alleged  to  have  been  killed  by  appel- 
lant's locomotives  and  cars, — one  alleged  to  have  been  killed  on 
May  7,  1897 ;  one  on  May  10,  1897 ;  one  on  August  5,  1897 ;  and 
one  on  November  5,  1897.  The  killing  of  each  animal  is  set  up 
as  a  separate  cause  of  action.  The  third  paragraph  of  each 
cause  of  action,  which  contains  the  allegations  of  the  careless 
and  negligent  killing  of  said  stock,  is  couched  substantially  in  the 
same  language,  and  in  the  first  is  as  follows :  ' '  That  the  defend- 
ant, by  its  agents  and  servants,  not  regarding  its  duty  in  that 
respect,  so  carelessly  and  negligently  ran  and  managed  its  loco- 
motives and  cars  that  the  same  ran  against,  upon,  and  over  said 
steer,  and  killed  and  destroyed  the  same,  to  the  damage  of  the 
plaintiff  in  the  sum  of  $18,  no  part  of  which  has  been  paid." 
The  total  value  of  the  four  head  is  alleged  to  have  been  $78.  To 
each  of  said  causes  of  action  the  defendant,  who  is  appellant 
here,  interposed  a  demurrer,  on  the  ground  of  uncertainty,^  and 
distinctly  specifies  that  each  of  said  causes  of  action  is  uncertain 
in  several  particulars,  and  among  them  the  following:  (1)  It 
does  not  state  any  facts  constituting  negligence  or  carelessness 
on  the  part  of  any  agent  or  servant  of  the  defendant,  or  of  the 
defendant;  (2)  it  does  not  state  any  act  or  omission  on  the  part 
of  any  agent  or  servant  of  the  defendant,  or  of  the  defendant, 
or  of  any  one,  constituting  negligence  or  carelessness.  The  de- 
murrer was  overruled,  and  appellant  declined  to  answer  or  fur- 
ther plead,  whereupon  judgment  was  given  and  entered  in  favor 
of  the  plaintiff.    This  appeal  is  from  the  judgment. 

Sullivan,  C.  J.     There  is  but  one  question  presented  by  the 

2  The  Code  of  Idaho,  R.  S.  1919,  codes  such  an  objection  could  only 
§  6G89,  makes  uncertainty  a  ground  be  taken  by  motion  to  make  the 
of   deivurrer.     Under   most   of  the       complaint  more  specific. 


Sec.  1.]    Facts  Constituting  the  Cause  op  Action.  353 

record,  and  that  is:     In  actions  based  on  negligence,  is  it  suffi- 
cient to  plead  negligence  generally,  or  must  the  specific  acts  of 
commission  or  omission  be  specifically  set  out  in  the  complaint? 
It  is  conceded  by  counsel  for  appellant  that  the  complaint  in 
this  action  would  be  good  as  against  a  general  demurrer,  towit, 
a  demurrer  on  the  ground  that  the  complaint  does  not  state 
facts  sufficient  to  constitute  a  cause  of  action,  and  that  it  is  suf- 
ficient to  sustain  a  verdict  or  judgment,  unless  attacked  by  a 
demurrer    on    the    ground   of  uncertainty,   specifically   setting 
forth  wherein  it  is  uncertain.    While  counsel  for  the  respondent 
concede  that,  if  the  facts  are  sufficiently  within  the  knowledge 
of  the  pleader,  it  would  be  better  pleading  to  plead  them,  they 
also  contend  that  the  rule  of  pleading  negligence  is  so  thorough- 
ly settled  in  this  countiy  that  it  is  no  longer  an  open  question, 
and  the  rule  is  to  the  effect  that  it  is  unnecessary  to  plead  the 
particular  acts  or  omissions  that  constitute  the  negligence,  and 
cite  Bliss,  Code  PI.  (3d  Ed.)  §  211a;  Cunningham  v.  R.  R.  Co. 
(Cal.)    47  Pac.  452;   Stephenson  v.   Southern  Pac.   Co.    (Cal.) 
34  Pac.   618 ;   and  numerous  other  cases.      It  is  said  in  Bliss, 
Code  PI.  (3d  Ed.)  §  211a,  that  a  general  allegation  of  negligence 
is  allowed;  that  negligence  is  the  ultimate  fact  to  be  pleaded, 
and  is  not  a  conclusion.     Referring  to  negligence  and  fraud,  it 
is  said:     "The  law  draws  the  conclusion  in  both  cases,  yet  we 
can  see  that  the  negligence  possesses  more  of  the  element  of  fact 
than  does  fraud.     *     *    *    We  do  not  infer  it  as  a  legal  conclu- 
sion from  certain  facts,  but  it  is  a  fact  itself  inferable  from  cer- 
tain evidence.     *     *     *     Fraud  will  never  be  presumed.     The 
facts  from  which  it  is  inferred  must  be  shown."     And,  after 
giving  some  examples  and  citing  authorities,   the  author  con- 
cludes said  section  as  follows:     "Some  negligence  is  presumed, 
and  it  must,  of  necessity,  be  alleged  generally. ' '    Simply  because 
"some  negligence  will  be  presumed,"  certain  facts  being  shown, 
we  are  unable  to  comprehend  that  for  that  reason  "negligence 
must,  of  necessity,  be  alleged  generally. ' '    If  certain  facts  must 
be  showTi  before  negligence  will  be  presumed,  the  plaiutiff  must 
know  these  facts  before  he  can  show  them;  and  if  he  knows 
them,  he  certainly  can  allege  them,  and  thus  inform  the  defend- 
ant of  the  specific  facts  from  which  the  conclusion  of  negligence 
is  drawn.     If,  under  the  laws  of  this  state,  the  killing  of  a  steer 
by  a  locomotive,  engine  or  train  of  cars  were  made  prima  facie 
evidence  of  negligence,  then,  such  killing  being  alleged  in  the 


354  The  Complaint.  [Chap.  III. 

complaint,  a  cause  of  action  would  be  stated.  But,  under  the 
statutes  of  this  state,  something  more  than  the  killing  must  be 
shown,  in  order  to  entitle  the  plaintiff  to  recover.  He  must  not 
only  show  the  killing,  but  he  must  show  the  certain  other  fact 
or  facts  from  which  the  conclusion  of  negligence  will  be  inferred 
or  drawn.  And,  if  a  plaintiff  must  show  acts  or  omissions  from 
which  negligence  will  be  inferred  before  he  can  recover,  it  cer- 
tainly is  no  hardship  on  him,  nor  unreasonable,  to  require  him 
to  allege  them.  Subdivision  2,  §  4168,  Rev.  Sts.,  provides  that 
the  complaint  must  contain  "a  statement  of  the  facts  constitut- 
ing the  cause  of  action  in  ordinary  and  concise  language. ' '  The 
causes  of  action  in  this  case  are  based  on  the  negligent  killing 
of  certain  animals.  Under  said  provision  of  the  statute,  the 
complaint  must  contain  a  statement  of  the  facts  constituting 
the  negligent  killing,  in  ''ordinary  and  concise  language."  In 
Stephenson  v.  Southern  Pacific  Railroad  Company,  supra,  the 
facts  constituting  the  negligence  were  stated  in  the  complaint 
in  ordinary  and  concise  language.  The  court,  after  stating  that 
at  common  law  it  was  necessary,  in  a  declaration  for  negligence, 
to  set  out  the  facts,  in  detail,  constituting  the  basis  of  the  ac- 
tion, says:  "In  adopting  what  is  known  as  'the  code  system  of 
pleading,'  courts  in  most  of  the  states  have  excepted  from  the 
general  rule,  requiring  a  complaint  to  state  the  facts  constitut- 
ing the  cause  of  action  in  ordinary  and  concise  language,  cases 
founded  upon  negligence,  or,  rather,  they  have  so  far  modified 
the  rule  as  to  permit  the  plaintiff  to  state  the  negligence  in  gen- 
eral terms,  without  stating  the  facts  constituting  the  negligence." 
If  it  be  true  that  the  courts  of  most  of  the  states  have  excepted 
from  the  general  rule,  which  requires  a  complaint  to  state  the 
facts  constituting  the  cause  of  action  in  ordinary  and  concise 
language,  cases  founded  on  negligence,  or,  rather,  have  so  far 
modified  that  provision  of  the  statute  as  to  permit  the  plaintiff 
to  state  negligence  in  general  terms,  without  stating  the  facts 
constituting  the  negligence,  this  court  is  not  inclined  to  follow 
them.  No  doubt,  we  have  much  good  court  made  law ;  but  when 
we  have  a  plain  provision  of  the  statute, — too  plain  for  con- 
struction,— if  it  requires  modification,  the  legislative  depart- 
ment of  the  state  may  do  that.  This  court  will  not  undertake 
it.  The  legislature  has  furnished  the  basis  of  decision  as  to  the 
facts  a  complaint  must  contain,  and  courts  are  bound  by  it. 
In  the  case  last  cited  the  court  further  said:    "The  statement 


Sec.  1.]   Facts  Constituting  the  Cause  of  Action.  355 

of  other  facts  auxiliary  to  this  main  fact  (negligence)  might 
have  tended  to  a  clearer  conception  of  the  principal  act,  but  the 
most  that  can  be  said  against  the  pleading  is  that  it  states  a 
cause  of  action,  but  states  it  imperfectly,  which  is  the  equivalent 
of  saying  that  it  is  good  except  against  a  special  demurrer." 
So  we  think  in  the  case  at  bar  the  complaint  sufficiently  states 
a  cause  of  action,  except  as  against  a  special  demurrer  on  the 
ground  of  uncertainty.  The  demurrer  should  have  been  sus- 
tained, and  the  plaintiff  permitted  to  amend  his  complaint  by 
setting  forth  the  facts  constituting  the  negligence.  In  Wood- 
ward V.  Navigation  Co.  (Or.),  22  Pae.  1076,  which  was  a  case 
founded  on  negligence,  the  court  says,  "Our  code  (section  66) 
requires  the  complaint  to  contain  a  plain  and  concise  statement 
of  the  facts  constituting  the  plaintiff's  cause  of  action,  and  one 
of  the  great  objects  to  be  attained  by  this  enactment  was  to  com- 
pel the  plaintiff  to  place  upon  the  record  the  specific  and  par- 
ticular facts  which  he  claims  entitles  him  to  recover,"  and  holds 
that  the  plaintiff  must  allege  in  the  complaint  the  acts  or  omis- 
sions of  the  defendant  causing  the  injury,  and  show  that  they 
occurred  through  or  by  the  negligence  of  the  defendant.  That 
decision  recognizes  the  fact  that  in  some  jurisdictions  it  is  suffi- 
cient to  allege  generally  that  the  injury  complained  of  was  neg- 
ligently done,  but  declares  that  that  method  of  pleading  has  not 
been  approved  in  that  state.  In  McPherson  v.  Bridge  Co.,  26 
Pac.  560,  the  supreme  court  of  Oregon  holds  that  in  actions  for 
negligence  a  general  allegation  of  negligence  does  not  charge  a 
fact.  In  Patterson  v.  Railway  Co.,  13  N.  W.  508  (a  case  from 
Michigan),  the  court  held  that  the  plaintiff,  in  negligence  cases, 
is  "bound  to  set  out  the  combination  of  material  facts  relied 
upon  as  his  cause  of  action,  and  follow  up  his  allegations  by 
evidence  pointing  out  and  proving  the  same  combination  of  cir- 
cumstances." See,  also,  Car  Co.  v.  Martin  (Ga.),  18  S.  E.  364; 
Steffe  V.  Railroad  Co.  (Mass.),  30  N.  E.  1137;  Conley  v.  Rail- 
road Co.  (N.  C),  14  S.  E.  303;  Price  v.  Water  Co.  (Kan.  Sup.), 
50  Pac.  450.  We  are  aware  that  there  is  a  very  respectable  au- 
thority which  holds  that  a  general  allegation  of  negligence  is 
sufficient,  and  that  at  common  law  it  was  not  necessary,  in  a 
declaration  for  negligence,  to  set  out  the  facts  constituting  the 
negligence.  But  our  code  of  civil  procedure  has  greatly  changed 
the  common  law  rules  of  pleading,  and  requires  the  facts  con- 
stituting the  cause  of  action  to  be  set  forth  in  ordinary  and 


356  The  Complaint.  [Chap.  III. 

concise  language.  And  in  the  case  at  bar  facts  sufficient  should 
have  been  set  forth  to  inform  the  defendant  what  act  or  omis- 
sion constituted  the  negligence  complained  of.*  The  judgment 
of  the  court  below  is  reversed,  with  instructions  to  sustain  the 
demurrer,  and  to  give  the  plaintiff  leave  to  amend  his  complaint. 
The  costs  of  this  appeal  are  awarded  to  the  appellant. 

Judgment  reversed. 


BERRY  V.  DOLE. 

Supreme  Court  of  Minnesota,  1902.    87  Minn.  471. 

Start,  C.  J.  Appeal  by  the  plaintiff  from  an  order  of  the 
district  court  of  the  county  of  Hennepin  sustaining  a  general 
demurrer  to  his  complaint.  The  here  material  allegations  of  the 
complaint  are  to  the  effect  following:  That  on  and  for  a  long 
time  prior  to  June  29,  1900,  the  defendants  maintained  in  a  pub- 
lic street  of  the  city  of  Minneapolis  a  wooden  structure  or  bridge 
over  the  gutter  therein  to  facilitate  passage  of  teams  and  wagons 
of  their  tenants  and  their  customers  into  an  alley  upon  their 
premises,  and  invited  the  public  and  the  plaintiff  to  use  the 
same ;  that  on  that  day  the  wooden  structure  or  bridge  was,  and 
for  a  long  time  prior  thereto  had  been,  in  a  defective,  rotten  and 
unsafe  condition,  which  condition  was  well  known  to  defendants, 
although  plaintiff  had  no  notice  or  knowledge  thereof;  that  on 
that  day  plaintiff,  in  the  course  of  his  employment  as  a  servant 
of  a  customer  of  one  of  the  defendant's  tenants,  was  lawfully 
and  with  due  care,  and  by  invitation  of  the  defendants,  driving 
over  the  bridge,  from  the  alley  to  the  street,  a  loaded  wagon, 
upon  which  he  was  seated,  when  the  bridge  suddenly,  and  Avith- 
out  fault  of  plaintiff,  broke  down  and  gave  way  under  the  wagon, 
and  thereby  caused  it  to  lurch  suddenly  to  one  side,  and  throw 

3  For    a   collection    of   the    oases  In   actions   against   common  car- 

on    this    point,    see    notes    of    the  riers,  the  charge  of  negligence  may 

principal  case  in  59  L.  R.  A.  209.  be    made    in    quite    general    terms. 

For    a    discussion    of    a    general  Lang     v.    Brady,     73     Conn.     707, 

charge     of     gross    negligence,     see  (1901). 
Herrem    v.    Kong,    165    Wis.    574, 
(1917). 


Si:c.  1.]   Facts  Constituting  the  Cause  of  Action.  357 

plaintiff  therefrom,  head  foremost,  violently  to  the  pavement  of 
the  street,  whereby  he  sustained  serious  personal  injuries.  As 
against  a  demurrer,  the  facts  essential  to  a  cause  of  action  must 
be  directly  alleged,  and  not  by  way  of  recital,  inference,  or  ar- 
gument. Tested  by  this  rule,  the  complaint  does  not  state  a 
cause  of  action,  in  that  it  contains  no  allegation  that  the  plain- 
tiff Mas  injured  by  reason  of  any  negligent  act  on  the  part  of 
the  defendants.  It  is  true  that  it  alleges  the  disrepair  and  the 
unsafe  condition  of  the  bridge  but  it  does  not  allege  the  fact  that 
it  was  the  defendant's  duty  to  keep  it  in  repair,  nor  that  the 
bridge  broke  down  and  gave  way  under  the  wagon  by  reason  of 
an  act  or  omission  of  the  defendants,  or  its  alleged  condition. 
Such  ultimate  facts  may  possibly  be  inferred  from  the  facts  al- 
leged, and  probably  would  be  in  support  of  a  pleading,  if  the 
question  of  its  sufficiency  was  raised  for  the  first  time  in  this 
court,  or  after  verdict,  but  will  not  be  as  against  a  demurrer. 

Order  affirmed. 


CONWAY  V.  REED. 

Supreme  Court  of  Missouri,  1877.    66  Mo.  346. 

This  was  an  action  for  damages  sustained  by  respondent  in 
consequence  of  the  alleged  unlawful  and  wrongful  shooting  of 
him  by  the  appellant,  whereby  the  amputation  of  his  left  leg 
was  rendered  necessary,  and  other  injuries  were  suffered  by 
him.  In  addition  to  the  denial  of  the  allegations  of  the  petition, 
the  answer  set  up,  as  a  special  defense,  that  appellant  and  re- 
spondent, and  other  boys  about  their  own  age,  twelve  or  thirteen 
years,  were  out  playing  together,  having  a  gun,  and  that  in  the 
course  of  their  talk  and  play,  whilst  the  gun  was  in  the  hands 
of  appellant,  without  any  fault  or  negligence,  or  design  on  the 
part  of  appellant,  the  gun,  without  being  aimed  at  or  directed 
towards  the  respondent,  accidentally  went  off  and  was  dis- 
charged, and  by  accident  alone  shot  respondent,  from  which  he 
suffered  and  had  to  have  his  leg  amputated.  On  the  trial  evi- 
dence was  offered  by  appellant  tending  to  show  that  the  shoot- 
ing was  purely  accidental  and  unintentional,  and,  by  respondent, 
that  it  was  owing  to  the  carelessness  and  negligence  of  appellant. 


358  The  Complaint,  [Chap.  III. 

The  jury  rendered  a  verdict  in  favor  of  the  respondent  for  one 
thousand  dollars.     *     *     * 

Henry,  J.  An  infant  is  liable  for  a  tort  in  the  same  manner 
as  an  adult.  Bullock  v.  Babcock,  3  Wend.  391;  Campbell  v. 
Stakes,  2  Wend.  138;  Vasse  v.  Smith,  6  Cranch,  230;  Morgan 
V.  Cox,  22  Mo.  374. 

It  is  contended  by  appellant  that,  because  the  petition  alleged 
that  defendant  unlawfully  and  wrongfully  assaulted  the  plain- 
tiff and  shot  him  with  a  gun,  evidence  of  a  negligent  or  care- 
less shooting  would  not  sustain  the  averment  in  the  petition ;  in 
other  words,  that  the  petition  alleged  one  cause  of  action  and  the 
evidence  established  another,  if  any.  Bullock  v.  Babcock,  supra, 
was  an  action  of  trespass  for  assault  and  battery.  The  defendant 
was  a  boy  about  twelve  years  of  age,  and  the  evidence  showed 
a  negligent  shooting  of  plaintiff  by  defendant  with  an  arrow 
from  a  bow,  and  it  was  held  sufficient  to  entitle  plaintiff  to  a 
judgment. 

In  Morgan  v.  Cox,  defendant  was  an  infant.  The  petition  in 
that  ease  alleged  a  negligent  killing  of  plaintiff's  slave  by  the 
defendant,  but  there  is  no  intimation  in  the  opinion  of  the  court 
that,  if  the  petition  had  alleged,  as  in  this  case,  that  defendant 
unlawfully  and  wrongfully  shot  the  slave,  the  evidence  that  it 
was  the  result  of  carelessness,  would  not  have  established  the 
cause  of  action  stated  in  the  petition.  Leonard,  J.,  said:  "The 
facts  of  the  present  case  would,  under  the  former  system  of 
procedure,  have  supported  an  action  of  trespass,  and  cannot,  we 
think,  be  distinguished  from  the  cases  cited.  In  one  of  them 
the  party,  in  uncocking  his  gun,  accidentally  discharged  it  and 
wounded  a  bystander.  Here,  the  defendant  accidentally  struck 
the  hammer  of  his  gun  against  his  saddle,  and  the  same  result 
ensued.  In  both  cases  it  was  upon  the  defendant  to  show  that  it 
happened,  as  the  books  say,  by  inevitable  accident,  and  without 
the  least  fault,  and  the  change  that  has  been  introduced  by  the 
new  code  in  the  remedy  has  not  changed  the  rules  of  law  as  to 
the  liability  of  the  parties."  The  change  introduced  by  the  new 
code  in  the  remedy  did  not  go  to  the  extent  of  requiring  less  or 
more  material  allegations  in  a  petition  than  were  necessary  to 
constitute  a  cause  of  action  at  common  law,  but  only  obviated 
the  necessity  of  using  those  formal  and  technical  averments 
which,  it  had  been  held,  were  necessary,  and  for  which  no  other 
mode   of  stating   the   same   thing   could   be   substituted.      The 


Sec.  1.]   Facts  Constituting  the  Cause  of  Action.  359 

change  introduced,  to  which  the  very  able  judge,  who  delivered 
that  opinion,  alluded,  was  that  made  by  the  first  section  of  the 
act  of  December,  1865,  Kevised  Statutes  of  1855,  page  1216, 
which  provided  that  there  should  be  but  one  form  of  action  for 
the  enforcement  or  protection  of  private  rights,  and  the  redress 
or  prevention  of  private  wrongs,  to  be  denominated  a  civil  ac- 
tion; and  in  the  third  section  of  article  6,  page  1229,  requiring 
in  a  petition  ''a  plain  and  concise  statement  of  the  facts  consti- 
tuting the  cause  of  action  without  any  unnecessary  repetition." 

These  sections  have  been  retained  in  the  subsequent  revisions. 
Is  it  true  that  the  proof  of  a  negligent  shooting  does  not  sustain 
an  averment  of  a  "v^Tongful  and  unlawful  shooting?  "With  re- 
gard to  the  liability  of  the  defendant,  the  law  holds  an  injury 
inflicted  through  carelessness  as  wrongful  and  unlawful;  if  ac- 
cidental and  inevitable  no  blame  attaches  to  the  person  inflicting 
the  injury.  He  is  then,  in  no  sense,  culpable.  If  the  act  was 
lawful  and  right,  which  is  the  converse  of  the  proposition,  the 
party  inflicting  the  injury  through  negligence  could  not  be  held 
liable,  and  is  only  responsible  because  it  was  unlawful  and 
wrongful. 

At  common  law  the  plaintiff  was  held  to  prove  the  cause  of 
action  alleged  in  his  declaration,  with  as  much  strictness  as 
under  the  code,  and  yet  an  action  of  trespass  for  assault  and 
battery,  as  we  have  seen,  was  the  proper  form  of  action  for  di- 
rect injuries  negligently  and  carelessly  inflicted,  as  well  as  those 
which  were  intentional  and  malicious. 

The  celebrated  case  of  Scott  v.  Shepperd,  reported  in  2  Wm. 
Black,  892,  and  cited  and  commented  upon  as  often,  perhaps, 
as  any  case  in  the  books,  was  an  action  of  trespass  for  assault 
and  battery.  Weaver  v.  "Ward,  Hobart  134,  cited  by  Judge 
Leonard,  was  in  the  same  form  of  action.  There  the  defendant, 
a  soldier,  had  accidentally  shot  his  comrade  while  exercising. 
In  all  these  cases  the  plaintiffs  maintained  their  actions,  al- 
though the  injuries  received  by  them  were  proved  to  have  been 
the  result  of  accidents,  and  not  intentionally  committed.  In 
none  of  them  was  it  alleged  in  the  declaration  that  the  injury 
was  occasioned  by  the  negligence  of  the  defendant.  ''In  dec- 
larations in  trespass,  which  lies  only  for  wrongs  immediate  and 
committed  with  force,  the  injury  is  stated,  without  any  induce- 
ment of  the  defendant's  motive  and  intention,  or  of  the  circum- 
stances under  which  the  injury  was  committed."     1  Chitty's 


360  The  CoMPLAiNr.  [Chap.  III. 

Pleadings,  387,  127.     The  court  properly  overruled  the  defend- 
ant's demurrer  to  the  evidence.     *     *     * 

Judgment  affirmed. 


GIBIB  V.  TWENTY-THIRD  ST.  RY.  CO. 

Court  of  Appeals  of  New  York,  1889.    114  N.  Y.  411. 

Action  for  damages  to  plaintiff's  person  and  wagon  resulting 
from  a  collision  with  one  of  defendant's  cars.  A  judgment  was 
rendered  in  favor  of  the  plaintiff,  which  was  affirmed  by  the 
General  Term,  and  the  defendant  appealed.* 

FoLLETT,  Ch.  j.  *  *  *  The  plaintiff  was  permitted  to  tes- 
tify, over  defendant's  objection,  that  the  evidence  was  not  with- 
in the  issue,  that  while  suffering  from  his  injury  he  employed 
two  men  to  work  in  his  place,  paying  them  $12  and  $15  per  week 
each,  $135  in  the  aggregate.  When  a  plaintiff  alleges  that  his 
person  has  been  injured  and  proves  the  allegation,  the  law 
implies  damages,  and  he  may  recover  such  as  necessarily  and 
immediately  flow  from  the  injury  (which  are  called  general 
damages)  under  a  general  allegation  that  damages  were  sus- 
tained; but  if  he  seeks  to  recover  damages  for  consequences 
which  do  not  necessarily  and  immediately  flow  from  the  injury 
(which  are  called  special  damages),  he  must  allege  the  special 
damages  which  he  seeks  to  recover.  It  is  not  alleged  in  the 
complaint  that  the  plaintiff  expended  money  in  hiring  others  to 
work  in  his  place ;  the  defendant  had  no  opportunity  of  contra- 
dicting the  evidence,  and  its  reception  was  error.  (Gilligan  v. 
N.  Y.  &  Harlem  R.  R.  Co.,  1  E.  D.  Smith  453 ;  Stevens  v.  Rodger, 
25  Hun  54 ;  Whitney  v.  Hitchcock,  4  Denio  461 ;  2  Thompson 
on  Negligence,  1250,  §§  32,  33;  2  Sedg.  on  Dam.  (7th  Ed.)  606; 
1  Chitty's  PI.  (16th  Am.  Ed.)  411,  515;  Mayne  on  Damages, 
chap."  17;  Heard's  Civil  PI.  310-314.)     *     *    * 

Judgment  reversed. 

4  Statement   condensed   and   part  of  the   opinion   omitted. 


Sec.  1.]    Facts  Constituting  the  Cause  op  Action.  361 

MORROW  V.  ST.  PAUL  CITY  RY.  CO. 

Supreme  Court  of  Minnesota,  1896.    65  Minn.  382. 

Start,  C.  J.  The  plaintiff's  intestate,  George  Morrow,  was  on 
March  22,  1895,  a  conductor  in  the  employ  of  the  defendant, 
on  one  of  its  electric  car  lines,  known  as  the  'SSelby  Avenue  Ex- 
tension," which  connected  with  its  cable  line  at  ]\Iilton  Street, 
in  the  city  of  St.  Paul.  While  he  was  engaged,  on  the  day 
named,  in  transferring  his  car  from  one  track  to  another  on  the 
electric  line,  a  cable  train  collided  with  the  electric  car,  whereby 
he  received  injuries  from  which  he  died  two  days  thereafter. 
This  action  was  brought  by  his  administratrix  to  recover  dam- 
ages for  his  death,  on  the  ground  that  it  was  caused  by  the  neg- 
ligence of  the  defendant.  The  specific  and  only  acts  of  negli- 
gence on  the  part  of  the  defendant  charged  in  the  complaint 
are  that  the  gripman  operating  the  cable  train  was  incompetent 
and  unable  to  manage  the  same,  to  the  knowledge  of  the  defend- 
ant; and  the  cable,  machinery  and  appliances  furnished  by  the 
defendant  to  propel,  control  and  operate  the  cable  train  were 
insufificient  and  defective.  These  allegations  were  put  in  issue 
by  the  answer.  There  w^as  a  verdict  for  the  plaintiff  in  the 
sum  of  $3,500,  and  the  defendant  moved  the  court  for  a  new 
trial,  on  the  ground,  among  others,  that  the  verdict  was  not 
justified  by  the  evidence,  and  for  errors  of  law  occurring  on  the 
trial,  and  excepted  to  by  the  defendant.  The  motion  was  granted 
in  general  terms,  mthout  specifying  the  particular  grounds 
therefor;    *    *     *. 

The  court  instructed  the  jury  to  the  effect  that  the  defendant 
was  bound  to  use  due  care  and  caution  to  provide  a  safe  place 
for  its  servants  in  which  to  perform  the  duties  assigned  to  them, 
and  that  for  any  violation  of  this  rule  the  defendant  was  liable 
for  damages.  The  exception  to  this  instruction,  and  the  re- 
sponse of  the  court  thereto,  are  in  these  words: 

"Mr.  Thygeson:  I  would  like  at  this  time  to  take  an  excep- 
tion to  that  part  of  the  court's  remarks,  just  made,  that  the 
defendant  is  liable  in  this  case  because  of  failure  to  furnish  a 
safe  place  in  which  the  servant  should  be  employed,  on  the 
ground  that  there  is  no  such  issue  in  this  case.    *    *    * 

It  is  to  be  noted  that  the  attention  of  the  court  was  by  the 
exception  specifically  called  to  the  fact  that  there  was  no  issue 


362  The  Complaint.  [Chap.  III. 

in  the  case  as  to  whether  the  place  assigned  to  the  deceased  in 
which  to  work  w^as  unsafe  or  not.  If  it  was  so  in  fact,  by  reason 
of  the  conditions  suggested  by  the  court  to  the  jury,  they  may 
have  been  obvious  to  the  deceased,  and  he  assumed  the  risks. 
We  have  already  stated  the  only  acts  of  negligence  on  the  part 
of  the  defendant  charged  in  the  complaint,  and  the  charge  that 
the  defendant  was  negligent  in  not  furnishing  a  safe  place  for 
the  deceased  in  which  to  perform  his  work  was  neither  alleged 
nor  litigated,  by  consent  or  otherwise.  The  giving  of  this  in- 
struction under  these  circumstances,  when  the  defendant  had 
no  opportunity  to  meet  the  charge,  was  clearly  prejudicial  error, 
for  which  the  defendant  was  entitled,  as  a  matter  of  right,  to 
a  new  trial.^ 

Order  affii-med. 


BENZ  v.  WIEDENHOEFT. 

Supreme  Court  of  Wisconsin,  1892.    83  Wis.  397. 

Slander.  The  material  allegations  of  the  complaint  were  as 
follows:  "That  on  or  about  the  22d  day  of  June,  1891,  at  the 
county  of  Ashland,  in  the  state  of  Wisconsin,  the  defendant, 
contriving  to  injure  the  plaintiff  in  her  reputation,  and  to  bring 
her  into  public  contempt  and  ridicule,  did  in  a  public  place,  in 
a  certain  discourse,  in  the  presence  and  hearing  of  divers  persons, 
wrongfully  and  maliciously  speak  the  following  false  and  de- 
famatory words  of  and  concerning  the  plaintiff,  Lizzie  Benz: 
'The  whip  was  used  in  the  barn.  There  was  some  monkey  work 
going  on  there.     I  will  tell  you  who  it  was  some  other  time:' 

6  It  is  also   frequently  held  that  that  the  last  chance  doctrine  should 

where  there  is  a  general  charge  of  not  be  submitted  to  the  jury  under 

negligence      in      connection      with  a  complaint  not  framed  to  present 

specific     acts     of    negligence,     the  that    issue.      Emmons    v.    Ey.,    191 

speciiications  will  be  construed  as  Pac.    333,    (Or.    1920);    and    hence 

explanatory  of  the  general  charge,  that  to  a  plea  of  contributory  neg- 

and  the  plaintiff  should  be  confined  ligence,   a  reply  setting   up   a  last 

to  the   specific  acts  alleged,  Wald-  chance    doctrine    is     a    departure, 

hier   v.    Ey.,    71    Mo.    514,    (1880).  Thayer  v.  Ey.,  21  N.  M.  380,  (1916). 

It  has  been  held  on  the  same  rea-  See  also  Daniel  v.  Prior,  227  S.  W. 

soning    as    in    the    principal    case,  102,   (Mo.  Sup.   1920). 


Sec.  1.]   Facts  Constituting  tue  Cause  of  Action.  363 

and  shortly  after,  to  wit,  on  the  22d  day  of  June,  1891,  the  de- 
fendant, in  another  discourse,  in  a  public  place,  and  in  the  pres- 
ence and  hearing  of  divers  persons,  in  relation  to  the  same  mat- 
ter, unlawfully  and  maliciously  spoke  of  and  concerning  the 
plaintiff,  Lizzie  Benz,  the  following  false  and  defamatory  words : 
'It  was  Lizzie  Benz  and  Willie  Drott  that  was  caught  in  the 
barn  in  the  crib;'  meaning  and  intending  to  convey,  b}^  the  use 
of  the  above  language,  that  the  plaintiff  and  one  Willie  Drott 
had  been  in  the  crib  in  the  cow  barn  together  for  the  purpose 
of  having  illicit  sexual  intercourse,  and  that  they  were  so  caught, 
and  that  a  certain  whip  was  used  in  driving  them  out  of  said 
barn.  By  means  of  which  said  false  and  defamatory  words  so 
spoken  as  aforesaid  the  plaintiff  has  been  injured  in  her  name, 
fame,  and  feelings,  in  the  sum  of  two  thousand  five  hundred 
dollars."    The  answer  was  a  general  denial. 

Upon  the  trial  the  defendant  objected  to  the  introduction  of 
any  evidence  under  the  complaint,  because  the  complaint  did 
not  state  a  cause  of  action,  the  language  charged  not  being  slan- 
derous per  se,  and  not  charging  any  offense.  The  objection  was 
overruled,  and  exception  taken.  A  verdict  for  the  plaintiff  was 
rendered,  upon  which  judgment  followed,  and  defendant  ap- 
peals. 

WiNSLOW,  J.  The  demurrer  ore  tenus  should  have  been  sus- 
tained. The  words  charged  to  have  been  uttered  are  not  action- 
able per  se.  In  their  usual  and  ordinary  meaning  they  impute 
no  criminal  offense.  Their  meaning  cannot  be  enlarged  by  in- 
nuendo, and  no  facts  are  alleged  by  way  of  inducement  which 
tend  to  show  that  the  meaning  to  be  given  them  is  different  from 
the  ordinary  or  usual  meaning.  Weil  v.  Schmidt,  28  Wis.  137.® 
Neither  are  any  special  damages  alleged.  The  complaint  states 
no  cause  of  action. 

Judgment  reversed. 

6  For  a  more  extended  discussion,      see  Christal  v.  Craig,  80  Mo.  367, 

(1883). 


364  The  Complaint.  [Chap.  III. 

CORR  V.  SUN  PRINTING  ASSOCIATION. 

Court  of  Appeals  of  New  York,  1904.    177  N.  Y.  131. 

Bartlett,  J.'  The  plaintiff  seeks  to  recover  damages  for  an 
alleged  libel  published  in  the  defendant's  newspaper,  known  as 
The  Sun,  printed  and  published  in  the  city  of  New  York. 

The  defendant  interposed  a  demurrer  to  the  complaint  on  the 
ground  that  it  appears  upon  the  face  thereof  it  does  not  state 
facts  sufficient  to  constitute  a  cause  of  action.  The  demurrer 
was  sustained,  *  *  *  and  the  complaint  w^as  dismissed.  The 
Appellate  Division  affirmed  the  final  judgment  duly  entered. 

The  question  involved  in  this  appeal  is  the  proper  construc- 
tion to  be  given  section  535  of  the  Code  of  Civil  Procedure, 
which  reads  as  follows:  "It  is  not  necessary,  in  an  action  for 
libel  or  slander,  to  state,  in  the  complaint,  any  extrinsic  fact, 
for  the  purpose  of  showing  the  application  to  the  plaintiff,  of 
the  defamatory  matter;  but  the  plaintiff  may  state,  generally, 
that  it  was  published  or  spoken  concerning  him;  and,  if  that 
allegation  is  controverted,  the  plaintiff  must  establish  it  on  the 
trial.    *    *    *" 

We  are  of  opinion  that  the  complaint  in  this  case  brings  it 
within  Fleischmann  v.  Bennett  (87  N.  Y.  231),  which  holds  that 
although  the  complaint  contains  the  general  words  of  section 
535,  the  defamatory  matter  was  published  of  and  concerning  the 
plaintiff,  it  does  not  aid  him  where  this  general  averment  is 
contradicted  and  rendered  nugatory  by  other  allegations. 

This  court  said:  "As  the  libel  neither  describes  nor  refers  to 
the  plaintiff,  nor  to  the  business  in  which  he  was  engaged,  but 
names  a  different  business,  and  a  firm  of  which  in  a  preceding 
portion  of  the  complaint  it  is  alleged  he  is  not,  and  never  was  a 
member,  it  is  manifest  that  the  plaintiff  cannot  in  any  way  be 
connected  with  the  libelous  matter  set  forth.  *  *  *  There  is 
no  principle  which  authorizes  the  introduction  of  any  such  evi- 
dence, where,  on  the  face  of  the  complaint,  it  is  clearly  apparent 
that  the  libelous  words  do  not  relate  to,  and  have  no  connection 
with  the  plaintiff  or  his  business  as  stated  therein." 

In  the  light  of  this  decision  let  us  examine  the  libel  and  the 
complaint  in  the  case  at  bar.     The  libel  in  substance  charges 

7  Dissenting  opinion  of  Vann,  J.  omitted. 


Sec.  1.]   Facts  Constituting  the  Cause  op  Action.  365 

that  at  two  o'clock  in  the  morning,  on  a  Brooklyn  street  car,  a 
woman  of  about  thirty-five  years  of  age  was  charged  with  rob- 
bing a  sleeping  man  of  his  watch ;  was  arrested  and  at  the  police 
station  gave  her  name  as  Kate  Losee,  living  at  195  Hamburg 
Avenue  and  was  held  in  $500  bail;  that  the  police  recognized 
her  as  Kittie  Carr,  the  daughter  of  a  Brooklyn  detective ;  that 
several  years  ago  many  policemen  were  infatuated  with  her — 
one  blew  out  his  brains — the  second  became  insane — the  third 
drank  himself  to  death. 

"We  have  here  the  description  of  a  thief  and  an  abandoned 
woman,  abroad  at  two  o'clock  in  the  morning,  robbing  a  sleep- 
ing passenger  on  a  street  car.  The  plaintiff  comes  into  court 
and  avers  that  this  libel  was  published  of  and  concerning  her, 
and  the  question  is  whether  this  general  averment  is  rendered 
nugatory  by  other  allegations. 

The  plaintiff  alleges  that  her  name  is  Kate  Corr  (not  Carr)  ; 
that  she  is  twenty-six  years  of  age  (not  thirty-five)  ;  that  she  is 
a  teacher  by  occupation,  employed  in  one  of  the  public  schools 
of  Brooklyn  and  had  always  borne  a  good  character  and  reputa- 
tion. The  libel  does  not  refer  to  Kate  Corr;  it  describes  a 
w^oman  with  a  different  name. 

It  is,  doubtless,  true  that  an  action  for  libel  may  be  main- 
tained where  the  plaintiff  is  not  named,  but  is  indicated  by  cir^ 
cumstances  contained  in  the  article  which  are  capable  of  direct 
proof  that  the  plaintiff  was  the  person  to  whom  reference  was 
made.  Many  eases  in  the  lower  courts  illustrate  this  situation, 
as  for  instance,  a  plaintiff  is  referred  to  by  his  business,  his 
place  of  business,  his  residence,  and  other  facts,  re^dering  it 
clear  that  he,  and  no  one  else,  was  referred  to  in  the  libel.  In 
such  a  case  section  535  of  the  Code  applies,  and  it  would  be  suf- 
ficient for  the  plaintiff  to  aver  that  the  article  was  published  of 
and  concerning  him ;  it  would  be  unnecessary  to  allege  in  detail 
the  facts  essential  to  connect  him  with  the  libel. 

In  the  case  at  bar  the  libel  clearly  states  the  name  of  a  woman 
who  does  not  bear  the  name  of  the  plaintiff ;  it  portrays  a  woman 
who  years  before  was  known  to  the  police  as  a  notoriously  bad 
character,  at  a  time  when  this  plaintiff  may  not  have  attained 
her  majority,  driving  men  to  the  insane  asylum  and  the  grave — 
a  M^oman,  in  the  language  of  the  libel,  who  had  "dropped  out  of 
sight  some  three  years  ago." 

We  are  of  the  opinion  that  it  appears  upon  the  face  of  the 


366  The  Complaint.  [Chap.  III. 

complaint  that  the  libel  was  not  published  of  and  concerning  the 
plaintiff,  and  that  the  demurrer  was  properly  sustained.^ 

Judgment  affirmed. 


ST.  LOUIS  V.  KNAPP  COMPANY. 

Supreme  Court  of  the  United  States,  1S81.    104  U.  S.  658. 

The  city  of  St.  Louis  commenced  this  suit  by  petition  filed  in 
a  State  court.  The  suit,  upon  the  application  of  the  defendant, 
the  Knapp,  Stout  &  Company,  a  corporation  created  by  the 
laws  of  Wisconsin,  was  removed  into  the  Circuit  Court  of  the 
United  States.  The  defendant,  treating  the  petition  as  a  bill 
of  equity,  filed  a  demurrer,  which  was  sustained.  The  bill  was 
dismissed,  and  the  city  appealed.  The  record,  therefore,  pre- 
sents the  question,  whether  the  city,  upon  the  showing  made, 
is  entitled  to  the  relief  asked.    *    *    * 

The  case  made  by  the  bill  was  that  the  defendant  was  driving 
piling  in  the  bed  of  the  Mississippi  River  near  the  city  wharf, 
and  that  such  piling  would  deflect  the  current  and  cause  ob- 
struction, etc.    *    *    * 

The  prayer  of  the  complaint  is  that  the  defendant,  its  agents 
and  servants,  be  forever  enjoined  from  driving  piles  and  con- 
structing its  run- ways  east  of  the  western  water's  edge  in  front 
of  its  premises;  that  it  be  required  to  remove  the  piles  already 
driven,  and  the  run-way  so  far  as  constructed ;  and  that  the  city 
have  such  other  and  further  relief  in  the  premises  as  may  be 
proper.* 

Mr.  Justice  Harlan.  *  *  *  "We  are  of  opinion  that  the 
demurrer  should  have  been  overruled,  and  the  defendant  re- 
quired to  answer.  The  bill  makes  a  prima  facie  case,  not  only 
of  the  right  of  the  city  to  bring  the  spit,  but  for  granting  the 
relief  asked.  It  distinctly  avers  what  the  defendant  proposes 
to  do,  and  that  averment  is  accompanied  by  the  general  charge 
or  statement  that  the  driving  of  the  piles  in  the  bed  of  the  river, 

8  For   a   collection   of   the   cases,  9  Statement   condensed   and   part 

see  Newton  v.  Grubbs,  48  L.  E.  A.       of  the  opinion  omitted. 
(N.  S.)   355,   (1913),  annotated. 


Sec.  1.]    Facts  Constituting  the  Cause  of  Action.  3G7 

and  the  construction  of  the  run-way,  will  not  only  cause  a  di- 
version of  the  river  from  its  natural  course,  but  will  throw  it 
east  of  its  natural  location,  from  along  the  river-bank  north  and 
south  of  the  proposed  run-way  and  piling,  creating  in  front  of 
the  city's  improved  wharf  a  deposit  of  mud  and  sediment,  and 
rendering  it  impossible  for  boats  and  vessels  engaged  in  the 
navigation  of  the  Mississippi  River  to  approach  or  land  at  the 
improved  wharf  north  and  south  of  defendant's  premises.  This 
is  not,  as  ruled  by  the  Circuit  Court,  merely  the  expression  of 
an  opinion  or  apprehension  upon  the  part  of  the  city,  but  a 
sufficiently  certain,  though  general,  statement  of  the  essential 
ultimate  facts  upon  which  the  complainant  rests  its  claim  for  re- 
lief. It  was  not  necessary,  in  such  a  case,  to  aver  all  the  minute 
circumstances  which  may  be  proven  in  support  of  the  general 
statement  or  charge  in  the  bill.  While  the  allegations  might 
have  been  more  extended,  ^^dthout  departing  from  correct  rules 
of  pleading,  they  distinctly  apprise  the  defense  of  the  precise 
case  it  is  required  to  meet.  There  are  some  cases  in  which  the 
same  decisive  and  categorical  certainty  is  required  in  a  bill  in 
equity  as  in  a  declaration  at  common  law.  Cooper,  Eq.  PI.  5. 
But,  in  most  cases,  general  certainty  is  sufficient  in  pleadings  in 
equity.  Story,  Eq.  PI.  sects.  252,  253.  Let  the  case  go  back  for 
preparation  and  hearing  upon  the  merits.  If  it  should  be  again 
brought  here,  we  may  find  it  necessary  to  discuss  the  numerous 
authorities  cited  by  counsel.  In  its  present  condition,  we  do 
not  deem  it  wise  to  say  more  than  we  have  in  this  opinion. 

The  decree  will  be  reversed,  with  directions  to  overrule  the 
demurrer  and  for  further  proceedings  according  to  law,  and  it  is, 

So  ordered. 


McHENRY  V.  JEWETT. 

Court  of  Appeals  of  New  York,  1882.    90  N.  Y.  58. 

Appeal  from  order  of  the  General  Term  of  the  Supreme 
Court,  in  the  first  judicial  department,  made  Feb.  3,  1882.  which 
affirmed  an  order  of  general  term,  granting  a  preliminary  in- 
junction herein.      (Reported  below,  26  Ilun  453.)  i° 

10  statement  condensed  and  part  of  the  opinion  omitted. 


368  The  Complaint.  [Chap.  III. 

Andrews,  Ch.  J.     The  complaint  shows  that  the  plaintiff  is 
pledgor  of  shares  of  railroad  stock  transferred  on  the  books  of 
the  company  to  the  defendant  as  trustee  for  the  pledgee,  and 
the  action  is  brought  to  restrain  the  defendant  from  voting  upon 
the  shares  at  the  meetings  of  stockholders,  which  it  is  alleged  he 
has  heretofore  done,  and  claims  the  right  to  do  in  the  future 
by  reason  of  his  title  and  right  as  trustee  of  the  sto;;k.     Tlie 
order  from  which  this  appeal  is  taken,  granted  a  temporary  in- 
junction restraining  the  defendant,  pendente  lite,  from  voting 
on  the  shares.     We  think  the  injunction  was  improperly  al- 
lowed, for  the  reason  that  it  does  not  appear  from  the  com- 
plaint that  the  plaintiff  is  entitled  to  the  final  relief  for  which 
the  action  is  brought,  and  in  such  case  a  temporary  injunction 
is  unauthorized.     (Code,  sec.  603.)     It  is  claimed  on  the  part 
of  the  plaintiff  that  within  the  general  rule  that  the  pledgee  has 
no  right  to  use  the  thing  pledged,  the  defendant  is  not  entitled 
to  vote  upon  the  shares,  which,  it  is  insisted,  is  a  use  of  the 
shares  in  violation  of  this  rule.    On  the  other  hand  the  defend- 
ant claims  that  the  voting  power  passes  to  the  pledgee  of  cor- 
porate shares  transferred  on  the  books  of  the  corporation  to  the 
pledgee,  as  incident  to  the  pledge,  and  according  to  the  pre- 
sumed   intention    of    the    parties.      Without    considering    this 
question,  but  conceding  the  plaintiff's  claim,  it  does  not  follow 
that  he  is  entitled  to  an  injunction  restraining  the  defendant 
from  voting  on  the  shares.     It  is  not  sufficient  to  authorize  the 
remedy  by  injunction,  that  a  violation  of  a  naked  legal  right  of 
property  is  threatened.    There  must  be  some  special  ground  of 
jurisdiction,  and  where  an  injunction  is  the  final  relief  sought, 
facts  which  entitle  the  plaintiff  to  this  remedy,  mast  be  averred 
in  the  complaint,  and  established  on  the  hearing.    The  complaint 
in  this  case  is  bare  of  any  facts  authorizing  final  relief  by  in- 
junction.   It  is  true  that  it  is  alleged  that  the  defendant  by  the 
use  of  the  shares,  has  been  enabled  to  a  great  extent  to  control 
the  management  of  the  corporation  in  the  interest  of  the  New 
York,  Lake  Erie  and  Great  Western  Railway  Company,  with 
little  or  no  regard  to  the  best  interests  of  the  company  issuing 
the  shares.     But  there  are  no  facts  supporting  this  allegation, 
nor  is  it  averred  that  the  interests  of  the  latter  company  have 
been  prejudiced,  or  that  the  value  of  the  shares  has  been  im- 
paired by  the  acts  of  the  defendant.     So  also  it  is  alleged  that 
it  ia  greatly  against  the  plaintiff's  interest  as  a  shareholder,  to 


Sec.  1.]    Facts  Constituting  the  Cause  of  Action.  369 

permit  the  defendant  to  vote  upon  the  shares,  and  that  the 
plaintiff  will  suffer  great  and  irreparable  injury,  if  the  defend- 
ant is  permitted  to  do  so.  But  no  facts  justifying  these  conclu- 
sions, are  stated,  and  the  mere  allegation  of  serious  or  irrepar- 
able injury,  apprehended  or  threatened,  not  supported  by  facts 
or  circumstances  tending  to  justify  it,  is  clearly  insufficient. 
Neither  injury  to  the  plaintiff's  property,  inadequacy  of  the  le- 
gal remedy,  or  any  pressing  or  serious  emergency,  or  danger  of 
loss,  or  other  special  ground  of  jurisdiction,  is  shown  by  the 
complai)it.  The  complaint,  therefore,  does  not  show  that  the 
plaintiff  is  entitled  to  final  relief  by  injunction.  (Corporation 
etc.  V.  ]\Iapes,  6  Johns.  Ch.  46;  New  York  Printing,  etc.  Estab- 
lishment V.  Fitch,  1  Paige  98;  High  on  Injunctions,  §§  22,  34, 
35,  and  cases  cited.)  The  preliminary  injunction  was  granted 
upon  the  complaint,  and  an  affidavit  verifying  the  statements 
therein,  without  stating  any  additional  facts.  It  is  doubtless 
sufficient  that  a  probable  or  prima  facie  case  be  made,  to  jus- 
tify the  granting  of  an  injunction,  pendente  lite,  but  where,  as 
in  this  case,  it  clearly  appears  that  the  complaint  shows  no  cause 
of  action,  then  a  preliminary  injunction  is  unauthorized,  and 
the  granting  of  it  is  error  in  law,  which  may  be  reviewed  by 
this  court,  on  appeal.  (Code,  §  190,  sub.  2;  Allen  v.  Meyer, 
73  N.  Y.  1 ;  Wright  v.  Brown,  67  id.  1 ;  Collins  v.  Collins,  71  id. 
270;  Paul  V.  Hunger,  47  id.  469.) 

The  order  of  the  general  and  special  terms  should  therefore 
be  reversed,  with  costs. 


NEWHAM  V.  KENTON. 

Supreme  Court  of  Missouri,  1883.     79  Mo.  382. 

Philips,  C.  This  is  a  bill  in  equity.  The  petition  states  that 
plaintiffs  are  husband  and  wife;  that  the  wife  contracted  with 
the  defendant  Kenton,  to  the  effect  that,  as  her  agent  and  trus- 
tee, he  would  purchase  certain  described  real  estate  in  the  town 
of  Norborne,  in  Carroll  county;  that  she  furnished  the  money, 
and  the  title  was  to  be  taken  in  the  name  of  the  defendant,  and 
immediately  thereafter  he  should  convey  to  her ;  that  the  money 
was  accordingly  furnished,  the  purchase  made  by  defendant  and 


370  'The  Complaint.  [Chap.  111. 

the  title  conveyed  to  him  by  the  vendor.  The  petition  then 
averred  that  soon  after  said  purchase  the  plaintiff,  with  the  con- 
sent of  defendant,  entered  into  the  possession  and  enjoyment  of 
the  premises,  and  had  ever  since  so  held  the  same,  making  large 
and  lasting  improvements  thereon,  snch  as  erecting  a  house,  etc., 
at  the  outlay  of  about  $1,000.  It  is  averred  that  the  defendant, 
though  often  requested  thereto,  has  wholly  failed,  refused  and 
neglected  to  make  conveyance  to  the  plaintiff  Margaret,  as  he 
had  agreed  to  do,  and  as  in  equity,  etc.,  he  was  bound  to  do. 
The  prayer  of  the  petition  is  for  a  decree  requiring  the  defend- 
ant to  execute  to  her  a  good  and  sufficient  deed  vesting  in  her 
the  right  and  title  so  acquired  by  defendant  and  for  proper  re- 
lief.   The  answer  is  a  general  denial. 

The  bill  of  exceptions  recites  that:  "The  plaintiffs,  to  sustain 
the  issues  on  their  part,  offered  evidence  tending  to  prove  the 
facts  set  forth  in  the  petition.  The  defendant,  to  sustain  the 
issues  upon  his  part,  offered  evidence  to  sustain  the  allegations 
pleaded  in  his  said  answer.  This  was  all  the  evidence  offered." 
Upon  this  state  of  the  case  the  court  rendered  the  following 
decree : 

"Now  at  this  day  come  the  parties,  by  attorneys  and  in  per- 
son, and  each  party  being  ready  for  trial  on  the  pleadings,  and 
the  court,  after  hearing  the  testimony  for  plaintiffs  and  defend- 
ant, and  the  argument  of  counsel,  finds  the  facts  to  be  as  fol- 
lows :    That  on  or  about  the  17th  day  of  January,  1876,  the  de- 
fendant, under  and  by  virtue  of  a  verbal  contract,  entered  into 
between  him  and  the  plaintiff  Margaret  P.  Newham,  purchased 
of  one  M.  C.  Huff  and  wife  the  real  estate  described  in  the  pe-  ' 
tition  for  and  on  account  of  the  plaintiff  at  and  for  the  sum  of 
$230 ;  that  by  the  contract  and  agreement  between  the  said  M. 
P.  Newham  and  defendant,  the  deed  to  said  real  estate  was  made 
to  defendant  as  trustee  for  the  plaintiff,  and  that  said  deed 
has  been  duly  made  and  recorded  in  Carroll  county,  but  that 
said  deed  does  not  express  said  trust;  that  shortly  after  said 
purchase,  as  aforesaid,  a  further  contract  and  agreement  was 
made  and  entered  into  between  plaintiff  M.  P.  Newham  and 
the  defendant  to  this  effect :    That  plaintiff,  M.  P.  Newham  and 
the  defendant  would  erect  and  build  a  two  story  frame  store- 
house, of  the  kind  and  character  mentioned  in  the  petition,  on 
said  lot;  that  each  party  was  to  bear  half  of  the  cost  of  the 
building  and  the  defendant  to  pay  one-half  of  the  purchase 


Sec.  1.]    Facts  Constituting  the  Cause  of  Action.  371 

money  for  said  lot,  and  each  to  be  and  become  equal  owners  of 
said  house  and  lot.  The  plaintiff,  ]\I.  P.  Newham,  in  the  sum- 
mer and  fall  of  1876,  built  and  erected  said  storehouse  at  a  cost 
of  $800;  that  defendant  Kenton  furnished  labor  and  material 
for  said  building  to  the  amount  of  $100  only ;  that  plaintiff  has 
held  and  occupied  said  building  from  some  time  in  the  fall  of 
1876  up  to  the  present  time ;  that  defendant  has  failed  and  re- 
fused to  carry  out  said  contract  either  by  executing  a  deed  to 
plaintiff  for  an  undivided  half  of  said  lot  or  by  paying  his  half 
of  the  balance  of  the  cost  of  said  building ;  and  that  the  balance 
due  from  defendant  to  plaintiff  M.  P.  Newham  on  half  the  cost 
of  lot  and  building,  after  a  full  settlement  of  lot  and  house 
transaction,  is  the  sum  of  $339  up  to  date.  It  is,  therefore,  or- 
dered, adjudged  and  decreed  by  the  court  that  the  said  defend- 
ant, Thomas  Kenton,  execute  and  deliver  to  plaintiff  a  good 
and  sufficient  deed  conveying  to  said  plaintiff,  Margaret  P.  New- 
ham, an  undivided  one-half  of  said  real  estate,  to-wit: 
Twenty-five  feet  off  the  south  end  of  lots  numbered  9,  10,  II 
and  12,  in  block  number  16,  in  the  town  of  Norborne,  Carroll 
county,  Missouri,  and  that,  in  default  of  the  execution  of  said 
deed,  all  the  right  and  title  of  the  defendant,  Thomas  Kenton, 
in  and  to  said  undivided  one-half  of  said  real  estate  be  divested, 
and  vested  in  plaintiff,  Margaret  P.  Newham.  And  it  is  further 
ordered  and  adjudged  that  plaintiff,  M.  P.  Newham,  have  and 
recover  of  the  defendant,  Thomas  Kenton,  judgment  for  the 
sum  of  $339,  together  with  the  costs  of  this  suit,  which  are 

taxed  at  the  sum  of  $ ,  and  that  execution  issue  therefor." 

From  this  decree,  after  an  ineffectual  motion  for  a  new  trial 
and  in  arrest,  the  defendant  has  appealed.  The  question  to  be 
decided  is,  as  to  the  propriety  and  right  of  this  decree. 

It  was  ever  the  rule  in  equity  to  set  out  with  particularity  and 
the  utmost  circumspection  as  to  truth,  the  facts  forming  the 
gravamen  of  the  complaint.  The  bill  being  addressed  to  "the 
forum  of  conscience,"  the  whole  facts  should  be  disclosed  that 
the  chancellor  might  ex  cequo  et  bono  make  decree.  The  code  of 
practice  applicable  alike  to  actions  at  law  and  in  equity  requires 
' '  a  plain  and  concise  statement  of  facts  constituting  the  cause  of 
action. ' '  The  facts  thus  stated  constitute  the  cause  of  action  and 
none  other.  It  is  a  great  misapprehension  to  suppose  that  one 
cause  of  action  can  be  stated  in  a  bill  in  equity,  and  by  some 
sort  of  comprehensive  flexibility  of  chancery  jurisdiction  relief 


372  The  Complaint.  [Chap.  III. 

can  be  administered  growing  out  of  a  state  of  facts  not  embraced 
witiiin  the  facts  pleaded. 

The  rule  that  under  the  general  prayer  for  relief  a  part}''  may 
have  any  relief  to  which  he  may  show  himself  entitled,  is  limited 
to  relief  founded  on  and  consistent  with  the  facts  set  out  in  the 
bill,  and  not  such  as  may  be  proven  at  the  hearing.  McNair  v. 
Biddle,  8  Mo.  257;  Wilkin  v.  Wilkin,  1  John.  Ch.  111.  So 
Napton,  J.,  in  Mead  v.  Knox,  12  Mo.  287,  said:  "It  is  not 
denied  that  a  court  may  grant,  under  the  praj^er  for  general 
relief,  a  relief  different  from  the  specific  relief  sought;  but  the 
decree   must   be   warranted  by   the   allegations   and   proofs."^ 

Now,  what  was  the  issue  tendered  by  the  petition  and  answer 
in  the  case  at  bar?  It  was  simply  and  singly  whether  the  plain- 
tiff furnished  the  purchase  money  for  the  lot  in  question  under 
the  arrangement  alleged,  that  defendant  should  receive  the  title 
in  trust,  and  Avhether  he  had  violated  his  obligation  in  that 
respect  to  convey  to  plaintiff.  The  evidence  offered,  so  recites 
the  bill  of  exceptions,  tended  to  maintain  the  issues  respectively 
made.  And  yet  on  this  state  of  the  pleadings  and  proofs  the 
court  made  the  decree  herein  quoted.  The  decree  is  based  on  a 
new  and  supplemental  contract  not  embraced  nor  in  the  re- 
motest degree  referred  to  in  the  petition.  Such  a  decree  cannot 
be  defended  either  on  authority  or  principle.  In  principle  it  is 
little,  if  at  all,  distinguishable  from  White  v.  Rush,  58  Mo.  105, 
which  was  an  action  of  ejectment.  The  answer  put  in  issue  the 
validity  of  the  title  under  which  plaintiff  claimed,  because  there 
was  no  notice  of  the  sale  under  the  deed  of  trust  through  which 
the  title  came.  Issue  was  taken  on  this  new  matter.  The  court 
was  not  content  with  finding  the  issues  for  defendant,  but  went 
further  and  adjusted  the  equities  between  the  parties  touching 
taxes,  etc.,  which  had  accrued  on  the  land,  and  rendered  judg- 
ment for  them.  This  court  held  there  was  nothing  in  the  plead- 
ings justifying  the  judgment,  and  it  was,  therefore,  error. 

How  the  evidence,  on  which  the  decree  under  review  purports 
to  be  based,  got  before  the  court,  is  not  apparent.  It  was  not 
competent  under  the  general  denial  for  the  defendant  to  intro- 
duce it.     It  was  not  an  issue  within  the  allegations  of  the  peti- 

1  For   the   rule   that   in   an   equi-  liability    disclosed    by    the    proof, 

table  action  the  plaintiff  on  failure  see   Jackson  v.   Strong,   222   N.   Y. 

to    prove    the    equitable    cause    of  149,  ante,  p.  98. 
action,  cannot   recover   on  a  legal 


Sec.  1.]   Facts  Constituting  the  Cause  of  Action.  373 

tion;  and  as  it  was  predicated  on  a  state  of  facts  supervenient, 
they  constituted  new  matter  which  the  defendant  could  avail 
liimself  of  only  by  pleading  them  specifically  in  the  answer. 
Greenway  v.  James,  34  Mo.  328 ;  Nortlirup  v.  ^Miss.  V.  Ins.  Co., 
47  Mo.  443,  444.  If  they  were  developed  in  the  progress  of  the 
trial,  and  either  party  wished  to  avail  himself  of  them,  an  appli- 
cation should  have  been  made  to  the  court  for  leave  to  amend. 
To  the  bill  thus  amended  the  defendant  would  have  tlie  right  to 
plead,  and  quite  possibly  other  and  important  questions  of  law 
might  arise  thereon. 

Respondents'  counsel  suggest  that  the  appellant  ought  not  to 
complain  of  the  error,  as  under  the  decree  he  ol)tains  a  half  in- 
terest in  the  lot  and  improvements.  But  the  court,  whilst  leav- 
ing in  him  an  undivided  interest  in  the  property,  went  further, 
and  rendered  a  judgment  in  personam^  against  him  for  $339.  In 
other  words,  under  a  petition  to  impress  the  legal  title  to  this 
property  in  defendant  with  a  trust  and  to  divest  the  legal  title 
and  vest  it  in  the  cestui  que  trust,  the  court,  against  his  prayer 
and  will,  decreed  that  defendant  have  half  the  title,  but  required 
him  to  pay  plaintiff  a  money  consideration  therefor  recoverable 
from  his  estate  generally.  This  is  a  marked  exhibition  of  the 
expansive  powers  of  a  court  of  equity ;  and  I  fear  would  be  a 
dangerous  precedent  to  establish.  It  would  certainly  be  a  ease 
of  "first  impression,"  which  would  evince  some  unjudicial 
temerity  to  venture. 

The  judgment  of  the  circuit  court  is  reversed  and  the  cause  is 
remanded.     All  concur. 

2  See  Merry  Realty  Co.  v.  Sham-  an  exchnn;;;e  of  lands,  the  triai' 
okin  Co.,  230  N.  Y.  316,  ante  p.  court  entered  a  decree  for  money 
101,  where  in  a  suit  to  set   aside       damages. 


374  The  Complaint.  [Chap.  III. 

Section  2.    The  Demand  for  Judgment. 

PENSENNEAU  v.  PENSENNEAU. 

Supreme  Court  of  Missouri,  1855.     22  Mo.  27. 

This  was  an  action  in  the  nature  of  a  suit  in  chancery,  brought 
by  the  plaintiff,  widow  of  Laurent  Pensenneau,  against  his  heirs 
to  establish  and  enforce  a  trust  in  certain  tracts  of  land.  A  de- 
cree was  entered  for  the  plaintiff  from  which  defendants  ap- 
pealed.^ 

Scott,  J. :  Elizabeth  Pensenneau,  the  plaintiff,  claims  that  a 
trust  results  to  her  in  the  land  in  controversy,  because  it  was 
an  inheritance  derived  from  her  father;  and  her  husband,  in 
making  a  partition  with  her  co-heirs,  took  a  deed  for  her  share 
in  his  own  name,  by  which  he  clothed  himself  with  a  trust  as  to 
it;  and  now  that  he  is  dead,  that  she  is  entitled  to  have  it 
executed  by  a  conveyance  to  her  of  the  title  in  fee  simple. 

If  it  were  conceded  that  the  law  is  as  assumed  by  the  plaintiff 
in  relation  to  a  resulting  trust  in  her  favor,  yet  a  difficulty 
arises  from  the  fact  that  the  deed  in  which  slie  joined  with  her 
husband  in  making  partition  with  her  co-heirs,  was  not  executed 
by  her  in  such  a  way  as  to  pass  her  interest  in  the  inheritance 
derived  from  her  father  so  that  she  is  now  in  the  same  situation 
she  would  have  been  had  no  partition  been  made.  Her  husband 
had  a  life  estate  in  her  land,  and,  as  the  matter  stands,  that 
estate  was  the  sole  consideration  which  was  given  for  the  land, 
which  he  acquired  by  the  partition  among  the  co-heirs  of  his 
wife,  the  plahitiff.  Elizabeth  Pensenneau,  the  complainant,  not 
having  acknowledged  the  deed  in  such  manner  as  to  pass  the 
estate  she  had  in  the  land,  she  now  stands  as  though  the  parti- 
tion had  not  been  made,  and  is  at  liberty  to  assert  her  rights, 
freed  from  all  embarrassments,  as  far  as  appears  from  the  rec- 
ord, created  by  her  husband's  deed  to  her  co-heirs.    *     *     * 

We  are  embarrassed  in  relation  to  that  part  of  the  petition 
which  asks  for  a  partition  of  the  premises  as  alternative  relief 
to  that  sought  by  the  case  as  stated.  We  do  not  know  on  what 
principle  it  was  founded.  Is  it  to  be  sustained  by  the  provision 
contained  in  the  third  section  of  the  17th  article  of  the  present 
practice  act,  which  says :    ' '  The  court  may  grant  any  relief  con- 

}  Statement   condensed   and  part  of  the  opinion  omitted. 


Sec.  2,]  The  Demand  for  Judgment.  375 

sistent  with  the  case  made  by  the  complainant,  and  embraced 
within  the  issue."  What  is  the  meaning  of  this  provision? 
Can  it  be  that  the  plaintiff  may,  in  his  petition,  ask  that,  if  he 
fails  to  make  out  his  case,  as  stated,  that  then  the  court  may 
from  the  facts,  as  they  turn  out,  try  another  and  a  different  ac- 
tion, and  give  the  party  the  alternative  relief  sought?  Can  a 
plaintiff  say  the  facts  of  his  ease  are  one  way,  and  ask  the 
relief  to  which  they  entitle  him,  and  then  require  the  court,  if 
he  should  on  the  trial  fail  to  prove  his  case,  to  try  another  cause 
of  action,  and  ascertain  whether  he  is  not  entitled  to  other  re- 
lief? Here  is  a  petition  to  enforce  a  trust.  The  facts  are  stated 
with  an  eye  to  that  relief.  Now,  on  what  principle  can  the 
plaintiff  ask  that,  if  he  is  mistaken  in  the  facts,  as  stated,  that 
then  his  case  may  be  turned  into  a  petition  for  partition.  The 
plaintiff  must  ascertain  the  facts  of  his  case  before  he  brings 
his  suit.  He  must  state  them  in  a  way  to  entitle  him  to  the 
relief  he  seeks.  If,  on  the  trial,  it  turns  out  that  he  was  mis- 
taken as  to  the  facts  of  his  case,  the  third  section  of  the  11th 
article  of  the  practice  act  affords  him  a  remedy.^  We  under- 
stand the  clause  above  cited  to  mean,  that,  if  on  the  facts  as 
stated,  the  plaintiff  is  entitled  to  relief  of  two  or  more  kinds, 
and  he  asks  for  only  one  kind,  yet  failing  to  obtain  that,  he 
may  have  any  other  relief  to  which  his  case,  as  made,  entitles 
him.^  He  cannot  ask  in  his  petition  that,  if  he  should  be  mis- 
taken as  to  its  remedy  and  fails  to  obtain  the  relief  he  seeks, 
then  that  another  and  a  different  cause  of  action  may  be  tried. 
For  the  purposes  of  his  action,  he  must  assume  that  the  facts 
are  one  way  and  asks  the  appropriate  relief.  He  must  reh'  on 
the  facts  as  stated ;  if  he  is  mistaken,  then  the  third  section  of 
the  11th  article  of  the  practice  act  prescribes  a  remedy  wliich  he 
must  ask  from  the  court,  and  not  come  here  and  object  for  the 
first  time  that  it  was  not  allowed  him.  (Robinson  v.  Rit-e,  20 
Mo.  229.) 

The  alternative  relief  here  sought  is  founded  on  the  assump- 
tion that  the  cause  of  action  is  wholly  misconceived,  and  is  en- 
tirely inconsistent  with  and  foreign  to  tbe  case  as  stated  in  the 

8  This    section    provided    for    an  lief  was   demanded,   see   Emery  v. 

amendment    of    the    pleadings    on  Pease,    20   N.   Y.    62,   ante,   p.    82; 

proper  terms  in  case   of  variance.  Barlow  v.  Scott,  24  N.  Y.  40,  ante 

3  For  cases  where  the  wrong  re-  p.  85. 


376  The  Complaint.  [Chap.  III. 

petition      Moreover,  the  necessary  parties  were  not  before  the 
court  in  order  to  make  a  partition  of  the  premises. 

The  difficulty  in  this  case  grows  out  of  the  omission  or  unwill- 
ingness of  the  plaintiff  to  determine  on  what  grounds  she  will 
stand.  She  must  either  abide  by  the  partition  or  disclaim  it. 
If  she  insists  that  there  was  a  binding  partition,  let  her  make 
a  deed  confirnnng  it,  the  only  effectual  mode  by  which  it  can 
be  done.  Then  she  will  be  in  a  position  to  claim  an  enforcement 
of  the  trust,  if  there  is  any.  If  she  is  unwilling  to  do  tliis,  then 
let  her  declare  the  nullity  of  the  deed  of  partition,  growing  out 
of  the  imperfect  mode  of  executing  it.  Failing  to  do  one  or  the 
other  of  these  things,  she  will  not  be  permitted  to  litigate  her 
rights,  without  determining  what  they  are,  before  she  institutes 
her  suit.  The  judgment  is  reversed,  and  the  bill  dismissed 
without  prejudice. 


LANE  V.  GLUCKAUP. 

Siipreme  Court  of  California,  1865.     28  Cal.  288. 

This  was  an  action  on  a  contract  or  promissory  note  for 
$2,843.00  payable  six  months  after  date  in  gold  coin  with  in- 
terest, etc. 

After  setting  out  the  contract,  the  complaint  avers  that  tlie 
same  has  been  assigned  by  the  payee  thereof  to  the  plaintiff, 
and  that  there  is  due  thereon  a  certain  sum,  to  wit :  two  thou- 
sand eight  hundred  and  fifty-six  dollars  and  sixty-two  cents 
in  gold  coin,  or  a  certain  other  sum  in  legal  tender  notes,  to  be 
ascertained  by  adding  to  the  former  the  difference  in  value  be- 
tween gold  and  legal  tender  notes  in  the  San  Francisco  market, 
adding  that  at  the  date  of  the  complaint  the  latter  were  worth 
in  that  market  only  fifty  cents  on  the  dollar  in  gold  coin. 

The  complaint  concludes  with  a  prayer  for  a  judgment  for 
the  sum  of  two  thousand  eight  hundred  and  fifty-six  dollars  and 
sixty-two  cents  in  gold  coin  of  the  United  States,  and  in  case  the 
same  is  paid  in  legal  tender  notes,  that  tlie  amount  to  be  paid 
shall  be  made  equal  in  value  to  that  sum,  to  be  ascertained  at 
the  time  of  payment  from  the  prices  current  of  the  San  Fran- 
cisco market  as  to  the  value  in  gold  of  said  notes. 


Sec.  2.]  The  Demand  For  Judgment.  377 

The  defendant  first  demurred,  and  then  answered,  his  de- 
murrer having  been  overruled.  The  Court  found  the  facts  sub- 
stantially as  stated  in  the  complaint,  and  rendered  a  judgment 
in  favor  of  the  plaintiff,  payable  in  gold  coin,  for  two  thousand 
nine  hundred  and  forty  dollars  and  twenty-two  cents,  the 
amount  of  principal  and  interest  found  due  on  the  contract, 
with  a  direction  in  the  judgment  that  it  bear  the  same  rate  of 
interest  as  the  contract.    The  defendant  appealed.* 

Sanderson,  C.  J.  *  *  *  It  is  next  claimed  that  the  relief 
granted  exceeds  that  prayed  for  in  the  complaint.  This  point  is 
based  upon  the  fact  that  the  complaint  does  not  ask  for  ac- 
cruing interest,  and  that  the  judgment  be  made  to  draw  interest 
at  the  same  rate  as  the  contract,  whereas  the  Court  allowed  ac- 
cruing interest  and  framed  the  judgment  so  as  to  make  it  draw 
the  same  rate  of  interest  as  the  contract.  In  support  of  this 
point  Lamping  &  Co.  v.  Hyatt  et  al.,  supra  (26  Cal.  99),  is  cited. 
But  that  was  a  case  of  default.  Where  judgment  is  by  default, 
the  Court  cannot  grant  greater  relief^  than  is  demanded  in  the 
complaint ;  but  where  there  is  a  trial,  the  Court  may  grant  any 
relief  consistent  v/ith  the  case  made  in  the  complaint  and  em- 
braced within  the  issue.  (Prac.  Act.  Sec.  147.)  The  contract 
is  set  out  in  the  complaint,  and  accruing  interest  and  interest 
on  the  judgment  are  embraced  within  the  issue,  notwithstanding 
they  are  not  included  in  the  prayer. 

Judgment  affirmed. 


COBB  V.  SMITH. 
Supreme  Court  of  Wisconsin,  1868.    23  Wis.  261. 

The  plaintiffs,  in  each  of  these  cases,  appealed  from  an  order 
of  the  circuit  court  modifying  judgment  in  their  favor  wliich 
had  been  entered  by  the  clerk.  The  case  will  appear  from  the 
opinion. 

Paine,  J.  These  three  appeals  present  the  same  question,  and 
wall  be  disposed  of  together.     The  actions  were  brought  for  a 

4  statement  condensed   and  part  6  See    §    1207,  N,   Y.   Code,   ante 

of  the  opinion  omitted.  p.  269,  note. 


25 


378  The  Complaint.  [Chap.  III. 

flowing  of  the  lands  of  the  plaintiffs  by  means  of  a  dam  erected 
and  maintained  by  the  defendants.  The  litigation  has  already 
been  twice  before  this  court.  In  Newell  v.  Smith,  15  Wis.  101, 
it  was  decided  that  the  act  purporting  to  allow  the  defendants 
to  flow  the  lands  of  others,  was  unconstitutional,  because  it  did 
not  make  any  adequate  provision  for  compensation.  In  Cobb  v. 
Smith,  16  Wis.  661,  it  was  decided  that  the  plaintiffs  were  not 
entitled  to  maintain  an  equitable  suit  to  prevent  the  reconstruc- 
tion of  the  dam,  by  reason  of  their  long  acquiescence  in  its  main- 
tenance, and  in  the  erection  of  valuable  mills  and  improvements 
depending  on  it  for  their  power.  And  it  was  said  that  for  the 
damage  occasioned  by  the  flowing,  the  plaintiffs  had  "their 
common-law  remedy." 

It  seems  that  the  complaints  were  then  amended,  so  as  to  turn 
them  into  actions  for  damages,  and  the  eases  proceeded  to  trial, 
and  the  plaintiffs  had  verdicts  fixing  the  amounts  of  damages 
respectively.  On  these  verdicts  the  counsel  for  the  plaintiffs 
procured  the  clerk  to  sign  judgments,  not  only  for  the  dam- 
ages and  costs,  but  also  directing  the  sheriff  to  abate  the  dam. 
Applications  were  then  made  by  the  defendants  to  set  aside  the 
latter  provision  in  each  judgment,  upon  affidavits  showing  sub- 
stantially the  same  facts  as  to  acquiescence  and  the  erection  of 
valuable  mills,  etc.,  that  appeared  in  the  equity  case  above  re- 
ferred to,  and  also  showing  that  this  feature  of  the  judgment 
was  a  surprise  upon  the  defendants,  who  did  not  suppose  that 
any  such  relief  was  sought  in  the  action,  and  that  the  attention 
of  the  court  was  not  called  to  it,  nor  was  that  of  the  defendant's 
counsel,  and  that  the  clerk  supposed,  when  he  signed  the  judg- 
ments, that  they  were  only  judgments  for  the  damages  and  costs 
in  pursuance  of  the  verdicts.  The  court  below  granted  the  ap- 
plications, and  from  those  orders  these  appeals  are  taken.  Its 
decision  was  based  entirely,  as  appears  from  the  opinion  printed 
in  the  case,  upon  the  decision  of  this  court  in  the  equity  case 
above  cited.  And  the  counsel  for  the  appellants  have  shown, 
that  it  does  not  follow  from  that  decision  that  the  action  of  the 
court  below,  now  under  consideration,  was  proper.  There  is  un- 
doubtedly a  wide  difference  between  a  court  of  equity  saying 
that  it  will  not  lend  its  aid  to  enforce  a  legal  right,  where  there 
are  equitable  reasons  for  its  refusal,  and  a  court  of  law  saying 
that  a  party  who  recovers  in  an  action  at  law  shall  not  have 
such  a  judgment  as  the  law  directs.     In  the  one  case  the  court 


Sec.  2.]  The  Demand  for  Judgment.  379 

has  a  discretion,  based  upon  those  equitable  principles  and  con- 
siderations upon  which  the  system  of  equitable  jurisprudence 
was  built  up,  which  entitles  it  to  refuse  its  peculiar  relief  in 
cases  where  it  would  cause  oppression  and  injustice.  But  a 
court  of  law  has  no  discretion,  resting  upon  such  considerations, 
to  refuse  to  any  party  such  a  judgment  as  the  law  provides  for, 
in  an  action  wholly  at  law.  If,  therefore,  these  actions,  in  the 
form  which  they  finally  assumed,  are  to  be  regarded,  as  the  court 
below  intimated,  as  actions  for  a  private  nuisance,  within  tlie 
meaning  of  section  1,  chapter  144,  R.  S.,^  then  I  do  not  think  it 
would  follow  that  the  plaintiffs  were  not  entitled  to  the  judg- 
ment there  provided  for,  because  this  court  had  decided,  that, 
for  the  reasons  already  mentioned,  a  court  of  equity  would  not 
interfere  by  injunction  to  prevent  the  reconstruction  of  the  dam 
after  it  had  been  carried  out  by  a  flood. 

But  I  do  not  think  these  actions  should  be  regarded  as  actions 
for  a  private  nuisance,  within  the  meaning  of  that  section.  The 
injury  complained  of  is  undoubtedly  a  private  nuisance,  and 
the  plaintiffs  might  have  proceeded  for  the  purpose  of  abating 
the  nuisance,  if  they  had  seen  fit.  But  they  were  not  bound  to 
do  so.  They  were  at  liberty  to  bring  their  actions  merely  for 
the  recovery  of  the  damages ;  and  this,  I  think,  is  what  they  have 
done.  It  is  true,  the  facts  showing  the  injury  to  the  land  are 
all  stated  ,and  with  sufficient  particularity  to  warrant  a  prayer 
for  the  abatement  of  the  dam  as  a  nuisance.  But  the  complaints 
did  not  contain  any  such  prayer.  No  such  relief  was  asked. 
And  under  the  present  system  of  practice,  which  requires  the 
plaintiff  to  state  in  his  complaint  the  relief  he  desires,  I  do  not 
think  an  action  should  be  regarded  as  an  action  to  abate  a 
nuisance,  unless  that  relief  is  demanded  in  the  complaint.  This 
court  has  decided,  in  Gillett  v.  Treganza,  13  Wis.  472,  that 
where  the  facts  stated  in  a  complaint  might  sustain  several  dif- 
ferent kinds  of  action,  the  prayer  for  relief  will  be  held  to  deter- 
mine the  character  of  the  action.  And  the  decision  is  applicable 
here.  The  plaintiffs  asked  only  for  damages,  and  that  makes  the 
actions,  actions  for  damages  only,  although,  upon  the  same  facts, 

6  The  statute  authorized  a  judg-  Sohwitzer,  24  S.  C.  39,  ante,  p.  190, 

ment  for  the  abatement  of  a  nuis-  was  brought   under  a  similar  stat- 

ance  in  an  action  triable  by  jury.  ute. 
Apparently  the  case  of  Hellams  v. 


380  The  Complaint.  [Chap.  III. 

the  plaintiffs  might  have  been  warranted  in  asking  to  abate  the 
dam. 

In  Abbott's  Forms,  vol.  1,  p.  474,  a  form  for  a  complaint  in 
such  an  action  is  given,  where  such  relief  is  expressly  asked. 
Such  a  prayer  was  in  the  complaint  in  Cromwell  v.  Lowe,  14 
Ind.  234,  though  under  their  statute  the  court  had  a  discretion 
to  abate  or  not.  But,  without  any  express  authority  upon  the 
point,  our  statute,  requiring  the  plaintiff  to  state  what  relief  he 
desires,  is  amply  sufficient  to  show  that,  if  he  does  not  ask  to 
have  the  dam  abated,  the  action  should  not  be  considered  as 
brought  for  that  purpose. 

An  action  for  a  private  nuisance,  w^ithin  the  meaning  of  the 
section  of  the  statute  above  referred  to,  should  be  held  to  be  only 
an  action  the  object  of  whieh  is  to  abate  the  nuisance.  That 
such  was  its  intent  is  clear  from  the  fact  that  it  provides  that, 
in  such  cases,  the  judgment  shall  be  that  the  nuisance  be  abated. 
And,  under  the  present  practice,  an  action  cannot  be  consid- 
ered of  that  character  unless  that  relief  is  demanded  in  the  com- 
plaint. Where  such  relief  is  sought,  it  is  usually  by  far  the 
most  important  object  of  the  suit ;  and  where  the  plaintiff  omits 
to  ask  for  anj^  such  relief,  the  defendant  has  a  right  to  assume 
that  the  action  is  not  an  action  for  a  nuisance  within  the  mean- 
ing of  that  statute. 

The  justice  and  propriety  of  this  ruling  seem  obvious,  and 
this  case  fully  illustrates  it.  The  complaint  asking  nothing  but 
damages,  the  defendants  were  thrown  off  their  guard.  They 
justly  concluded  that  they  were  not  called  on  to  defend  against 
any  other  claim.  They  therefore  neglected  to  set  forth  in  their 
answer  such  facts  as  might  have  entitled  them  to  the  affirmative 
interference  of  a  court  of  equity  to  prevent  the  plaintiffs  from 
enforcing  their  legal  right  to  the  abatement  of  the  nuisance. 
That  upon  a  sufficiently  strong  case,  a  court  of  equity  ought  so 
to  interfere,  I  have  no  doubt.  The  same  principles  which  induce 
it  to  refuse  its  own  aid  to  the  party  whose  land  is  flowed,  where 
he  has  acquiesced  for  a  long  time  in  the  maintenance  of  the  dam, 
and  in  the  erection  of  valuable  mills  and  improvements  depend- 
ent upon  it,  ought  to  induce  it  to  give  affirmative  assistance  to 
the  otlier  party,  to  prevent  the  assertion  of  a  strict  legal  right,  of 
trifling  value,  to  the  destruction  of  great  and  valuable  interests 
that  have  grown  up  on  the  faith  of  such  acquiescence.  Un- 
doubtedly the  court  should  attach  just  conditions  to  such  relief, 


Sec.  2.]  The  Demand  for  Judgment.  381 

and  should  compel  the  payment  of  all  that  the  land-owner  ought 
in  equity  to  receive.  But  having  done  this,  it  should  prevent 
him  from  asserting  his  legal  right  to  abate  the  dam  at  the  ex- 
pense of  such  injustice  and  hardship  to  others.  The  cases  es- 
tablishing the  principles  upon  which  courts  of  equity  refuse 
their  own  aid  in  such  instances,  are  cited  in  Sheldon  v.  Rock- 
well, 9  Wis.  166.  And  the  following  sustain  the  conclusion  that 
the  court  would  not  only  refuse  its  own  aid,  but  would  affirma- 
tively interfere  to  prevent  the  party  from  asserting  his  strict 
rights  at  law,  in  a  proper  case :  Sprague  v.  Steere,  1  R.  I.  259 ; 
Trenton  Banking  Co.  v.  McKelway,  4  Halt.  Ch.  84.  The  case 
from  Rhode  Island  was  itself  a  case  of  the  former  class,  but  it 
refers  approvingly  to  several  old  cases  of  the  latter.  Under  the 
old  practice,  the  mode  of  obtaining  this  relief  would  have  been 
by  a  separate  equitable  suit.  Under  the  present,  it  could  be  ob- 
tained in  the  suit  at  law,  but  only  by  setting  up  the  facts  in  the 
answer,  and  asking  it  as  affirmative  relief.  Hence  the  necessity 
of  indicating  in  the  complaint  the  kind  of  relief  sought  by  the 
plaintiff,  that  the  defendant  may  have  a  fair  opportunity  to  de- 
fend against  it,  or  any  part  of  it. 

I  attach  no  importance  to  the  fact  that  these  complaints  con- 
tained the  old  equitable  prayer  for  general  relief.  Such  a 
prayer  is  inappropriate  to  a  complaint  in  an  action  at  law,  and 
does  not  tend  in  any  manner  to  supply  the  place  of  a  specific 
demand  of  particular  relief,  which,  if  sought,  gives  character 
to  the  whole  action. 

If  these  complaints  had  asked  for  this  relief,  and  the  defend- 
ants had  neglected  to  plead  and  present  any  equitable  defense 
they  might  have  had,  they  could  not  have  been  relieved  on  these 
motions.  The  judgments  would  then  have  been  proper.  But  as 
they  did  not  ask  for  it,  and  as  the  actions,  for  that  reason,  could 
not  fairl}^  be  regarded  as  being  brought  to  abate  the  nuisance, 
the  defendants  were  not  called  on  to  defend  against  that  relief, 
and  that  part  of  the  judgments  may  well  be  regarded  as  a  sur- 
prise upon  them,  from  which  they  were  entitled  to  relief  on 
motion. 

For  these  reasons,  I  think  the  orders  appealed  from  should  be 
affirmed.''^ 

Orders  affirmed. 

7  See  also  O'Brien  v.  Fitzgerald,  for  judgment  characterized  the  ae- 
143  N.  Y.  377,  where  the  demand      tion  as  legal,  and  therefore  subject 


382  The  Complaint.  [Chap.  III. 

CORRY  V.  GAYNOR. 

Supreme  Court  of  Ohio,  1871.    21  Ohio  St.  277. 

The  original  action  was  brought  by  Gaynor  against  Corry  to 
recover  assessments  made  upon  sundry  lots  for  the  improvement 
of  a  street.  The  petition  sets  forth  all  the  facts  necessary  to 
show  a  valid  assessment  against  the  lots,  giving  separately  the 
amount  assessed  against  each.  It  alleges  that  the  work  was 
duly  let  to  a  contractor  who  has  fully  completed  it,  and  that 
the  assessments  so  made  have  been  assigned  to  the  contractor, 
and  by  him  assigned  to  Gaynor.  The  petition  also  avers  that 
Corry  is  the  owner  of  the  lots ;  but  it  does  not  state  who  0A\Tied 
them  at  the  date  of  the  assessment,  and  it  asks  for  a  judgment 
against  Corry  for  the  aggregate  amount  of  the  several  assess- 
ments, being  $13,781.25,  and  in  default  of  payment  that  the 
respective  lots  may  be  sold,  each  for  the  amount  assessed  against 

it. 

The  answer  denies  the  legality  of  the  assessment,  and  also 
denies  that  the  work  has  been  completed  according  to  contract. 

On  hearing,  the  court  found  that  said  sum  of  $13,781.25  was 
due  from  Corry,  as  claimed  in  the  petition,  and  that  the  plaintilf 
had  in  equity  a  lien  upon  the  several  lots  named  for  the  re- 
spective amounts  so  assessed  against  them.  The  court  thereupon 
adjudged  that  Corry  should  pay  said  aggregate  amount  to 
Gaynor,  and  in  default,  that  the  lots  be  sold,  as  upon  execution, 
for  the  satisfaction  thereof. 

From  this  judgment  Corry  appealed  to  the  district  court, 
where  the  appeal  was  dismissed  as  for  want  of  jurisdiction.  To 
reverse  the  order  of  the  district  court  dismissing  the  appeal,  is 
the  object  of  the  present  petition  in  error,  the  only  question 
being  whether  the  case  is  one  in  which  the  parties  had  the  right 
of  appeal.' 

Welch,  C.  J.  We  think  the  court  erred  in  dismissing  the  ap- 
peal. The  action  was  not  one  in  which  the  parties  could  de- 
mand a  jury  trial.  It  was  an  action  un  ler  the  statute  to  en- 
force a  lien  for  assessments  upon  the  lots.     The  facts  stated  in 

to  demurrer  for  misjoinder  of  par-  ties  would  have  been  proper, 

ties,  though  the  facts  stated  might  8  From  the   argument   of  counsel 

have  supported  an  equitable  action  it  appears  that  an  appeal  was  not 

in  which  case  the  joinder  of  par-  available  in  case  of  a  legal  action, 


Sec.  2.j  The  Demand  for  Judgment,  383 

the  petition  are  precisely  those  which  it  is  necessary  to  set  forth 
in  such  an  action, — nothing  less,  nothing  more.  These  facts 
are  the  assessments,  the  performance  of  the  work,  and  that 
Corry  was,  at  the  time  of  the  commencement  of  the  suit,  the 
owner,  or  claimed  to  be  the  owner,  of  the  lots.  The  fact  that 
Corry  was  tlie  owner  of  these  lots  at  the  date  of  the  assessment, 
is  not  averred  in  the  petition.  Unless  he  was  the  owner  at  tliat 
date  the  statute  does  not  make  him  liable  for  the  assessment, 
or  authorize  an  action  against  him  personally.  The  petition 
contains  a  prayer  for  a  personal  judgment  against  Corry,  as 
Avell  as  a  prayer  for  the  sale  of  the  lots ;  but  there  are  no  facts 
stated  which  will  justify  such  a  prayer,  or  warrant  the  court 
in  rendering  such  a  judgment.  The  only  relief  that  could  prop- 
erly be  granted,  upon  the  facts  stated  in  the  petition,  was  a 
decree  for  the  enforcement  of  the  lien  against  the  lots.  The 
prayer  for  personal  judgment  was  mere  surplusage  and  could 
not  give  character  to  the  action.  It  was  not  an  action  to  recover 
money,  nor  was  it  an  action  such  as  is  authorized  by  the  act 
of  Feb.  19,  1864  (S.  &  S.  575),  to  enforce  a  lien  and  also  to 
recover  a  personal  judgment  for  the  amount  due.  That  act  can 
apply  only  to  a  case  where  there  is  a  personal  liability  for  the 
money  due  as  well  as  a  right  to  enforce  the  lien  by  which  it  is 
secured.  It  is  the  statement  of  facts,  and  not  the  prayer  con- 
tained in  the  petition,  which  gives  character  to  the  action  as 
being  one  in  which  the  parties  are  or  are  not  entitled  to  a  jury 
trial,  or  an  appeal.  True,  where  the  facts  stated  entitle  the 
plaintiff  to  elect  between  two  remedies,  to  either  of  which  the 
facts  show  him  to  be  entitled,  the  prayer  may  determine  the 
character  of  the  action,  because  it  is  itself  an  election.  The 
trouble  here,  however,  is  that  there  are  no  facts  set  forth  en- 
titling the  plaintiff  to  pray  for  a  personal  judgment  against 
Corry.  For  aught  that  appears,  some  one  else  owned  these  lots 
at  the  time  the  assessment  was  made.® 

Judgment  reversed. 

9  And   so    in   Easley   v.   Prewitt,  plaint   simply   made    a   case    for    a 

37  Mo.  361,  (1866),  where  the  pray-  personal  judgment. 

er   was    for    foreclosure    of   a   lien,  Compare  Faesi  v.  Goetz,  15  Wis. 

but    the    allegations    of    the    com-  231,  post,  p.  420. 


384  The  Complaint.  [Chap.  III. 

GRAND  ISLAND  S.  &  L.  ASS'N  v.  MOORE. 

Supreme  Court  of  Nebraska,  1894.     40  Neh.  686. 

Appeal  from  a  deficiency  judgment  rendered  in  an  action  to 
foreclose  a  mortgage. ^° 

Irvine,  C.  *  *  *  The  second  objection  is  based  upon  the 
failure  of  the  petition  to  pray  for  a  deficiency  judgment.  The 
prayer  was  "for  a  finding  of  the  amount  due  on  said  claim,  and 
for  a  decree  of  foreclosure,  an  order  of  sale  of  the  said  propertj'' 
to  satisfy  the  said  claim,  and  for  such  other  and  further  relief 
as  is  just  and  equitable."  Whether  a  deficiency  judgment  can 
be  allowed  under  a  prayer  for  general  relief  is  a  question  not 
free  from  doubt,  and  its  solution  is  rendered  more  difficult, 
rather  than  aided,  by  such  authorities  as  we  have  been  able  to 
find.  It  would  seem  that  under  the  general  rule  that  a  prayer 
for  general  relief  permits  the  allowance  of  any  relief  applicable 
to  the  case,  and  not  inconsistent  with  the  particular  relief  de- 
manded, such  a  prayer  would  be  sufficient  to  authorize  the  ren- 
dition of  a  judgment  for  the  deficiency.  The  courts  have,  how- 
ever, exhibited  a  tendency  to  depart  from  this  general  rule  in 
such  cases,  but  their  decisions  are  largely  based  upon  statutes 
more  or  less  differing  from  those  of  this  state.  Counsel  contend 
that  the  case  of  Brownlee  v.  Davidson,  28  Neb.  785,  45  N.  W. 
51,  implies  that  no  special  prayer  for  a  deficiency  judgment  is 
necessary.  We  cannot  see,  in  that  case,  any  such  implication. 
On  the  contrary,  it  does  appear,  clearly,  from  that  case,  that  at 
some  stage  of  the  proceedings  the  plaintiff  must  ask  for  a  defi- 
ciency judgment  before  error  can  be  predicated  upon  failure  to 
allow  it.  This  is  the  only  authority  cited  in  the  briefs.  We 
have,  however,  pursued  the  investigation  somewhat  further.  In 
Giddiugs  v,  Barney,  31  Ohio  St.  80,^  under  a  similar  prayer,  the 
court  discussed  a  statute  which  it  was  claimed  permitted  a  mort- 

10  Statement  condensed  and  part  after    the    sale    of    the    mortgaged 

of  the   opinion  omitted.  property.      In   some    of   the    states 

1  It  appears  from  this  case  that  the  practice  has  grown  up  to  ren- 

under  the  law  of  Ohio,  a  personal  der    a    personal   judgment   for   the 

judgment   for    the   debt    could   not  deficiency  in  the  equity  ease,  Amer- 

be  rendered  in   a  purely  equitable  ican  Trading  Co.  v.  Gottstein,  123 

action   to   foreclose,   but   execution  la.  267. 
might  be  awarded  for  a  deficiency 


Sec,  2.]  The  Demand  for  Judgment.  385 

gagee  in  one  action  to  foreclose  his  mortgage,  and  obtain  a  per- 
sonal judgment  upon  the  debt.  It  was  held  that  the  personal 
judgment  could  not  be  allowed  under  a  prayer  similar  to  that  in 
the  case  under  consideration,  but  the  court  disclaimed  the  inten- 
tion to  deny  the  power  of  awarding  executio)i  for  a  balance  due 
after  the  property  was  exhausted.  The  inference  is  that  such  re- 
lief could  be  had.  In  Foote  v.  Sprague,  13  Kan.  155,  the  peti- 
tion asked  for  a  foreclosure  and  sale,  and  that  execution  should 
be  issued  for  the  balance.  A  personal  judgment  was  rendered. 
The  supreme  court  held  that,  where  the  prayer  was  no  more  de- 
fective than  in  that  case,  it  might  be  amended  at  any  time,  and, 
upon  petition  in  error,  would  be  considered  as  amended.  In 
Wisconsin  the  statute  permits  a  deficiency  judgment  only  Aviiere 
it  is  demanded.  In  dinger  v.  Liddle,  55  Wis.  621,  13  N.  W. 
703,  a  prayer  for  execution  for  any  balance  was  held  sufficient 
to  meet  the  requirement  of  the  statute.  In  Kentucky,  under  a 
prayer  for  foreclosure  and  general  relief,  it  was  held,  in  Hans- 
ford V.  Holdman,  14  Bush.  210,  that  the  rendition  of  a  deficiency 
judgment  was  erroneous,  where  the  defendant  made  no  defense 
to  the  action.  But  this  was  because  a  statute  provided  that  if  no 
defense  be  made  the  plaintiff  cannot  have  judgment  for  any  re- 
lief not  specifically  demanded.  This  principle  would  seem  quite 
clear.  In  New  York  the  statute  is  similar  to  that  in  Kentucky, 
and  the  eases  in  that  state  usually  citdd  as  holding  that  a  special 
prayer  is  necessary  are  based  upon  the  statute,  and  intimate  that 
where  a  defense  is  made  the  rule  would  be  different.  Simonson 
V.  Blake,  20  How.  Pr.  484;  Peck  v.  Railway  Co.,  85  N.  Y.  246. 
The  result  of  these  cases  seems  about  as  follows:  In  Ohio,  we 
have  a  dictum  that  the  general  prayer  is  sufficient;  in  Wiscon- 
sin, a  liberal  construction  given  to  a  special  prayer,  to  make  it 
conform  with  the  statute ;  in  Kansas,  an  implication  that  a  spe- 
cial prayer  is  necessary,  but  defective  prayer  treated  as  amended 
so  as  to  supply  the  defect;  in  New  York  and  Kentucky,  an  in- 
ference that  the  general  prayer  is  sufficient,  where  the  defend- 
ant, by  making  a  defense,  has  deprived  himself  of  the  protection 
of  a  statute  demanding  a  different  rule.  We  have  not  in  this 
state  any  statute  similar  to  those  of  Wisconsin,  New  York,  or 
Kentucky.  The  protection  afforded  defendants  in  default  by 
those  statutes  is  partially  given  here  by  section  64  of  the  Code 
of  Civil  Procedure,  providing  that,  in  an  action  for  the  recovery 
of  money  only,  there  shall  be  indorsed  on  the  writ  the  amount 


386  The  Complaint.  [Chap.  III. 

for  which  judgment  will  be  taken,  if  the  defendant  fail  to  an- 
swer, and  that,  if  the  defendant  fail  to  appear,  judgment  shall 
not  be  taken  for  a  larger  amount,  and  the  costs.  In  Jones  v. 
Null,  9  Neb.  57,  1  N.  W.  867,  it  was  held  that  a  suit  to  foreclose 
a  mortgage  was  not  an  action  for  the  recovery  of  money  only. 
Still,  we  are  not  required  to  decide  what  rights  the  defendant 
would  have,  on  failure  to  appear  in  such  a  case,  if  there  was  no 
indorsement  upon  the  writ.  The  record  contains  neither  the 
process,  the  answer,  nor  the  decree.  If  the  appearance  of  de- 
fendant was  necessary  to  give  the  court  power  to  act,  it  must  be 
presumed  that  there  was  such  appearance.  It  would  seem,  there- 
fore, that  the  prayer  was  sufficient  to  justify  the  rendition  of  the 
deficiency  judgment;  but,  if  not,  then  we  are  quite  clear  that 
it  might  be  amended,  with  notice  to  the  defendant,  so  as  to  ask 
for  the  judgment,  and  the  motion  for  the  judgment,  especially 
where  it  is  couched  in  such  language  as  it  was  here,  should  be 
treated  as  an  amendment.  The  record  shows  affirmatively  that 
notice  of  the  motion  was  served  upon  the  defendant,  and  that 
he  appeared  in  response  thereto.  The  amendment  was  also  in 
time.  It  came  before  the  judgment  was  rendered,  and  no  at- 
tempt was  made  to  take  advantage  of  any  finding  affecting  the 
right  to  the  judgment  which  may  have  been  contained  in  the 
original  decree.  The  right  to  the  judgment  was  tried  upon  its 
merits,  subsequent  to  the  motion,  and  after  defendant's  appear- 
ance to  the  motion.    *    *    * 

Judgment  affirmed. 


SMITH  V.  SMITH. 

Supreme  Court  of  Kansas,  1903.     67  Kan.  841. 

Per  Curiam.  This  was  an  action  by  the  defendant  in  error 
upon  a  petition  setting  out  facts  which  would  warrant  the  enter- 
ing of  a  decree  for  a  divorce  and  alimony,  or  for  alimony  alone, 
against  the  plaintiff  in  error,  then  her  husband.  A  decree  for 
both  divorce  and  alimony  was  entered.  The  most  meritorious 
question  raised  upon  the  petition  in  error  is  whether  under  a 
petition  whose  allegations  would  authorize  a  divorce,  but  the 


Sec.  2.]  The  Demand  for  Judgment.  387 

prayer  of  which  is  only  that  alimony  be  allowed,  a  decree  of 
divorce  should  be  granted.  It  is  well  settled  in  this  state  that 
the  prayer  of  the  petition  forms  no  part  of  it,  and  that  relief 
may  be  granted  in  accordance  with  the  facts  stated  in  the  peti- 
tion rather  than  pursuant  to  its  prayer.  Smith  v.  Kimball,  36 
Kan.  474,  13  Pac.  801;  Walker  v.  Fleming,  37  Kan.  171,  14 
Pac.  470.  But  it  is  here  insisted,  where  the  facts  pleaded  war- 
rant more  than  one  kind  of  relief,  that  plaintiff  should  have 
only  such  relief  as  he  prays  for ;  that  otherAvise  defendant  might 
be  misled  in  the  presentation  of  his  evidence,  not  knowing  the 
ultimate  and  true  purpose  of  plaintiff  in  the  prosecution  of  the 
action.  No  effort  was  made  by  the  defendant  to  require  the 
plaintiff  to  state  how  much  of  relief  she  was  desiring.  He  knew 
from  the  allegations  of  the  petition  that  she  might  obtain  a 
divorce.  He  chose  to  go  into  the  trial  without  subsequently  re- 
questing a  declaration  as  to  the  extent  of  the  relief  which  she 
desired.  Besides  this,  we  think  it  fairly  inferable  from  the  rec- 
ord that  the  defendant  was  notified  that  the  action  was  one  by 
which  the  plaintiff  expected  to  obtain  a  divorce,  and  that  defend- 
ant conducted  his  case  upon  that  theory.^ 

Considerable  space  is  devoted  in  the  brief  of  plaintiff  in  error 
to  a  discussion  of  the  evidence  and  its  sufficiency.  All  of  the 
evidence,  with  its  claimed  contradictions,  was  before  the  trial 
court.  He  deemed  it  sufficient.  We  are  not  in  a  position  to  take 
an  opposite  view;  iiideed,  we  are  inclined  to  the  same  conclu- 
sion.   *    *    * 

Judgment  affirmed. 

2  See    also    Nathan    v.    Dierssen,  statute    allowing   such    a   combina- 

164    Cal.    607,    (1913),    where    the  tion,    though    judgment    for    mesne 

complaint  was  treated  as  in  eject-  profits  alone  was  demanded, 
ment    and    for    mesne    profits,    the 


388  The  Complaint.  [Chap.  III. 

Section  3.    Joinder  of  Causes  op  Action. 

1.     Causes  That  May  Be  Joined.^ 

HARRIS  V.  AVERY. 

Supreme  Court  of  Kansas,  1869.     5  Kan.  146. 

Valentine,  J.  This  action  was  brought  in  the  court  below 
by  Avery,  as  plaintiff.  The  petition  states  two  causes  of  action, 
— false  imprisonment  and  slander, — and  alleges  that  both  arose 
out  of  the  same  transaction.  Harris  demurred  to  this  petition, 
on  the  ground  "that  it  appears  on  the  face  of  the  petition  that 
several  causes  of  action  are  improperly  joined."  The  district 
court  overruled  the  demurrer,  and  this  ruling  is  assigned  as 
error.  The  petition  shows  that  the  two  causes  of  action  are 
founded  upon  the  following  facts:  Harris  met  Avery  in  the 
City  of  Fort  Scott,  and,  in  the  presence  of  several  other  persons, 
called  Avery  a  thief ;  said  he  had  a  stolen  horse ;  took  the  horse 
from  Avery,  and  kept  the  horse  for  four  or  five  days;  arrested 
Avery,  and  confined  him  in  the  county  jail  with  felons  four  or 
five  days.  "We  think  these  facts,  as  detailed  in  the  petition, 
constitute  only  one  transaction  (Brewer  v.  Temple,  15  How. 
Pr.  286)  ;  and  whether  they  constitute  more  than  one  cause  of 
action,  under  our  code  practice,  may  be  questionable.*  Under 
the  authority  we  have  referred  to  they  would  not.  But  as  we 
have  not  been  asked  to  decide  the  latter  question,  we  will  pass  it 
over  and  treat  the  case  as  though  the  facts  stated  constitute  two 
causes  of  action. 

Section  89  of  the  Code  (Comp.  Laws  138),  provides  "that 
the  plaintiff  may  unite  several  causes  of  action  in  the  same 
petition,  whether  they  be  such  as  have  heretofore  been  denom- 
inated legal  or  equitable,  or  both,  when  they  are  included  in 
either  one  of  the  following  classes :  First,  the  same  transaction 
or  transactions  connected  with  the  same  subject  of  action." 
This  differs  in  many  respects  from  the  common  law  rule.  At 
common  law,  "where  the  same  form  of  action  may  be  adopted 

IFor  the  provisions  of  the  code  2  As    to    when    more    than    one 

on  the  joinder  of  several  causes  of  cause  of  action  arises,  see   section 

action  in  the  same  complaint,   see  on  "Splitting  and  consolidation  of 

ante,  p.  269,  demands,"  ante,  p.  3. 


Sec.  3.]  Joinder  op  Causes  of  Action.  389 

for  several  distinct  injuries,  the  plaintiff  may,  in  general,  pro- 
ceed for  all  in  one  action,  though  the  several  rights  affected  were 
derived  from  different  titles,"  (1  Chit.  PI.  201;  Tidd,  Pr.  11)  ; 
and  different  forms  of  action  may  be  united,  "where  the  same 
plea  may  be  pleaded  and  the  same  judgment  given  on  all  the 
counts  of  the  declaration,  or  whenever  the  counts  are  of  the 
same  nature,  and  the  same  judgment  is  to  be  given  on  them, 
although  the  pleas  be  different."    1  Chit.  PI.  200. 

In  the  action  at  bar,  if  Harris  had  arrested  Avery  on  a  war- 
rant, which  Harris  had  maliciously  and  without  probable  cause 
obtained  from  a  court  of  competent  jurisdiction,  and  had  also 
converted  the  horse  to  his  own  use,  then  at  common  law  Avery 
would  have  had  three  distinct  causes  of  action,  which  he  could 
unite  in  one  suit:     First,  an  action  for  the  false  imprisonment 
or  malicious  prosecution;  second,  an  action  of  slander  for  the 
words  .spoken ;  and,  third,  an  action  of  trover  for  the  conversion 
of  the  horse.    These  may  all  be  united  in  an  action  on  the  case, 
(1  Chit.  PI.  133,  134,  146;  1  Tidd  Pr.  5)  trover  being  a  species 
of  case.     Avery  might,  also,  at  common  law  unite  with  these 
causes  of  action  as  many  other  causes  of  action  as  he  might 
have,  for  malicious  prosecution,  slander,  trover,  criminal  conver- 
sation, nuisance,  and  other  causes  of  action  which  may  be  sued 
in  an  action  on  the  case,  and  although  they  may  each  have  arisen 
out  of  a  different  ti-ansaction,  and  at  a  different  time,  and  in  a 
different  place.     But   if  Harris   arrested   Avery   without   any 
process— which  was  the  fact  in  this  case — and  in  an  entirely 
irregular  manner,  then  the  two  causes  of  action  for  false  im- 
prisonment and  slander  could  not  at  common  law  be  united,  as 
the  first  would  have  to  be  sued  in  an  action  of  trespass  and  the 
second  in  an  action  on  the  case,  and  it  would  make  no  difference 
whether  they  both  arose  out  of  the  same  transaction  or  not. 
Our  code  has  abolished  all  the  common  law  forms  of  action,  and 
has  established  a  system  for  the  joinder  of  actions, — more  philo- 
sophical, and  complete  within  itself.     It  follows  the  rules  of 
equity  more  closely  than  it  does  those  of  the  common  law,  one 
object  seeming  to  be  to  avoid  the  multiplicity  of  suits,  and  to 
settle  in  one  action,  as  equity  did,  as  far  as  practicable,  the 
whole  subject  matter  of  a  controversy.    Hence,  the  common  law 
on  this  question  is  no  criterion.    It  is  probably  true  that  the  two 
causes  of  action  for  false  imprisonment  and  slander  cannot,  un- 
der our  code,  be  united,  unless  both  arise  out  of  the  same  trans- 


390  The  Complaint.  [Chap.  III. 

action,  one  being  an  injury  to  the  person  and  the  other  being 
an  injury  to  the  character;  but  we  do  not  know  of  any  reason 
why  they  should  not  be  united  when  both  do  arise  out  of  the 
same  transaction.  It  is  claimed  by  counsel  for  the  plaintiff  in 
error  that  the  earlier  cases  under  the  New  York  Code  are  against 
this  view  of  the  case.  He  refers  to  Furniss  v.  Brown,  8  How. 
Pr.  59,  73 ;  Hulse  v.  Thompson,  9  How.  Pr.  113 ;  Jeroliman  v. 
Cohen,  1  Duer  629.  "We  think  it  questionable  whether  these 
cases  sustain  the  counsel's  views;  but  if  they  do,  the  later  deci- 
sions under  the  same  code  are  squarely  against  him.  See  Brewer 
V.  Temple,  15  How.  Pr.  286;  Robinson  v.  Flint,  16  How.  Pr. 
240.  In  the  latter  case  the  court,  as  we  think,  express  the  true 
rule.  They  say  "that  the  plaintiff  may  unite — First,  as  many 
legal  causes  of  action  as  he  pleases  arising  out  of  the  same 
transaction ;  second,  as  many  equitable  causes  of  action  as  he 
pleases  arising  out  of  the  same  transaction ;  third,  as  many  legal 
and  equitable  causes  of  action  as  he  pleases  arising  out  of  the 
same  transaction ;  fourth,  as  many  causes  of  action  as  he  pleases 
rising  out  of  different  transactions  connected  with  the  subject 
of  the  action." 

The  order  of  the  district  court  overruling  the  demurrer  to  the 
petition  is  affirmed. 


WILES  V.  SUYDAM. 

Court  of  Appeals  of  New  York,  1876.    64  N.  Y.  173. 

Church,  Ch.  J. :  The  ground  of  demurrer  relied  upon  is 
that  several  causes  of  action  are  improperly  united.  The  com- 
plaint contains  but  one  count  composed  of  a  series  of  allega- 
tions, and  was  doubtless  framed  upon  the  theory  that  there  is 
but  one  cause  of  action  contained.  If,  hov/ever,  the  complaint 
does  contain  several  causes  of  action,  and  they  are  improperly 
united,  the  omission  to  state  the  causes  of  action  in  separate 
counts  properly  numbered  does  not  deprive  the  defendant  of 
the  right  to  demur.  (Goldberg  v.  Utley,  60  N.  Y.  427.)  The 
complaint  alleges  an  indebtedness  against  the  Imperishable 
Stone  Block  Pavement  Company  of  New  York  City,  which  had 
been  prosecuted  to  judgment  and  execution;  that  the  defendant 


Sec.  3.]  Joinder  of  Causes  of  Action.  391 

was  a  "stockholder  to  the  amount  of  $50,000,"  but  had  not  paid 
for  the  same,  and  that  no  certificate  had  been  made  and  recorded 
that  the  capital  was  paid  in.  Section  10  of  the  aot  authorizing 
the  formation  of  corporations  for  manufacturing  and  other  pur- 
poses declares  that  until  such  certificate  is  recorded  the  stock- 
holders shall  be  liable  for  the  debts  of  the  company  to  tlie 
amount  of  their  stock  respectively.  The  complaint  also  alleges 
that  at  the  time  the  debt  was  contracted  and  ever  since,  the  de- 
fendant was  a  trustee  of  the  corporation,  and  that  no  report  was 
filed  on  the  1st  day  of  January,  1873,  nor  at  any  time  since, 
and  for  this  neglect  the  twelfth  section  of  the  act  aforesaid  de- 
"clares  that  the  trustees  shall  be  liable  for  all  the  debts  of  the 
corporation  then  existing,  or  which  may  be  thereafter  created, 
until  such  report  is  filed. 

It  is  insisted  by  the  counsel  for  the  plaintiff  that  this  consti- 
tutes but  one  cause  of  action,  and  he  argues  that  the  cause  of 
action  is  to  recover  the  debt  upon  two  grounds  of  personal  lia- 
bility created  by  statute.  I  am  unable  to  concur  in  this  view. 
The  recovery  of  the  debt  is  the  object  of  the  action,  but  a  cause 
of  action  must  have  two  factors,  the  right  of  the  plaintiff  and 
the  wrong  or  obligation  of  the  defendant.  These  must  concur  to 
give  a  cause  of  action.  The  cause  of  action  against  tlie  de- 
fendant as  a  stockholder,  consists  of  the  debt  and  the  liability 
created  by  statute  against  stockholders  when  the  stock  has  not 
been  paid  in  and  a  certificate  of  that  fact  recorded.  In  effect 
the  statute  in  such  a  case  withdraws  the  protection  of  the  cor- 
poration from  the  stockholders,  and  regards  them  liable  to  the 
extent  of  the  amount  of  their  stock  as  co-partners.  (Coming  v. 
McCullough,  1  N.  Y.  47.)  The  allegations  in  the  complaint  are 
sufficient  to  establish  a  perfect  cause  of  action  against  the  de- 
fendant as  a  stoclvliolder  primarily  liable  for  the  debts  to  the 
amount  of  his  stock.  The  allegations  against  the  defendant  as 
trustee  also  constitute  a  distinct  and  perfect  cause  of  action, 
but  of  an  entirely  different  character.  Here  tlie  liability  is 
created  by  statute  and  is  in  the  nature  of  a  penalty  imposed  for 
neglect  of  a  duty  in  not  filing  a  report  showing  the  situation 
of  the  company.  The  object  of  the  action  is  the  same,  viz.,  the 
collection  of  the  debt;  but  the  liability  and  the  grounds  of  it 
are  entirely  distinct  and  unlike.  That  there  are  two  causes  of 
action  in  this  complaint  seems  too  clear  to  require  much  argu- 
ment.    The  more   difficult   question   is,   whether  they   may  be 


392  The  Complaint.  [Chap.  III. 

united  in  the  same  complaint.  The  first  cause  of  action  against 
the  defendant  as  a  stockholder  is  an  action  on  contract.  The  six 
years'  statute  of  limitation  applies.  (1  N.  Y.,  supra.)  The  de- 
fendant is  entitled  to  contribution.  (3  Hill  188.)  But  in 
respect  to  the  action  against  defendant  as  trustee,  this  court  held 
in  Merchants'  Bank  v.  Bliss  (35  N.  Y.  412),  that  the  three 
years'  statute  of  limitations  applied  under  the  following  pro- 
vision of  the  code :  ' '  An  action  upon  a  statute  for  a  penalty  or 
forfeiture  when  the  action  is  given  to  the  party  aggrieved." 
(§  92.) 

"With  this  decision  before  us,  which  we  do  not  feel  at  liberty 
to  overrule,  this  cause  of  action  must  be  regarded  as  an  action 
upon  a  statute  for  a  penalty  or  forfeiture.  The  liability  is  far 
more  extensive  than  that  of  the  stockholder;  it  is  for  all  debts, 
while  the  former  is  limited  to  the  amount  of  the  stock.  The  de- 
fendant would  not  be  entitled  to  contribution  except  by  statute 
(Laws  of  1871,  p.  1435),  and  contributions  would  be  from  dif- 
ferent persons  than  in  the  other  case.  It  is  claimed  also  that 
execution  against  the  person  might  issue  and  this  would  seem 
to  follow  from  the  decision  in  12  New  York  {supra)  but  we  do 
not  deem  it  necessary  to  pass  upon  that  question.  If  these  ac- 
tions may  be  united  it  must  be  by  virtue  of  the  first  subdivision 
of  section  167  of  the  code.  From  the  nature  of  the  two  actions 
they  do  not  come  under  either  of  the  other  subdivisions.  The 
first  subdivision  reads  as  follows:  "The  plaintiff  may  unite  in 
the  same  complaint  several  causes  of  action  whether  they  be 
such  as  have  been  heretofore  denominated  legal  or  equitable,  or 
both,  when  they  all  arise  out  of :  1st.  The  same  transaction  or 
transactions  connected  with  the  same  subject  of  action."  This 
language  is  very  general  and  very  indefinite.  I  have  examined 
the  various  authorities  upon  this  clause,  and  I  am  satisfied  that 
it  is  impracticable  to  lay  down  a  general  rule  which  will  serve 
as  an  accurate  guide  for  future  cases.  It  is  safer  for  courts  to 
pass  upon  the  question  as  each  case  is  presented.  To  invent  a 
rule  for  determining  what  the  "same  transaction"  means,  and 
when  a  cause  of  action  shall  be  deemed  to  "arise  out  of  it,"  and 
what  the  same  "subject  of  action  means,"  and  when  transac- 
tions are  to  be  deemed  connected  with  it,  has  taxed  the  ingenu- 
ity of  many  learned  judges,  and  I  do  not  deem  it  necessary  to 
make  the  effort  to  find  a  solution  to  these  questions.  An  in- 
teresting chapter  on  this  clause  is  contained  in  a  recent  work 


Sec.  3.]  Joinder  of  Causes  of  Action.  393 

by  John  M.  Pomcroy,  on  "Remedies  and  Remedial  Rights"  (p. 
496) ,  which  contains  a  review  of  all  the  authorities,  and  a  criti- 
cal analysis  of  the  language  with  definitions  and  suggestions 
which  will  be  useful  in  determining  particular  cases.  Judge 
Comstock  says  of  this  clause:  "Its  language  is  I  thinly  well 
chosen  for  the  purpose  intended,  because  it  is  so  obscure  and 
so  general  as  to  justify  the  interpretation  which  shall  be  found 
most  convenient  and  best  calculated  to  promote  the  ends  of 
justice."  (17  N.  Y.  592.)  There  is  certainly  ample  scope  for 
construction,  but  it  is  sometimes  difficult  to  determine  what  in- 
terpretation will  best  promote  the  ends  of  justice.  It  is  prob- 
able that  the  primary  purpose  of  this  provision  was  intended  to 
apply  to  equitable  actions,  which  frequently  embrace  many  com- 
plicated acts  and  transactions  relating  to  the  subject  matter  of 
the  action,  which  it  w^ould  be  desirable  to  settle  in  a  single  con- 
troversy. The  clause  was  not  intended  to  overturn  all  distinc- 
tions in  actions  and  rules  of  pleading,  and  this  court  has  held 
that  an  action  of  trespass,  in  breaking  into  a  house  and  opening 
a  trunk,  could  not  be  joined  with  an  action  on  a  covenant  in  a 
lease  for  quiet  enjoyment,  although  the  act  which  rendered  the 
defendant  liable  in  both  actions  was  the  same.  (56  N.  Y.  332.) 
In  this  case  it  is  attempted  to  unite  an  action  on  a  statute  for  a 
penalty  with  an  action  on  contract.  The  nature  of  the  two 
actions  are  essentially  different,  although  the  object  to  be  at- 
tained is  the  same.  The  facts  to  establish  the  liability  are  en- 
tirely unlike.  The  measure  of  liability  is  different ;  the  defenses 
are  different.  The  rights  of  the  defendant  may  be  seriously 
prejudiced.  Suppose  a  general  verdict  is  obtained,  from  whom 
would  the  defendant  seek  contrilmtion,  from  his  co-trustees  or 
from  his  co-stockholders?  Can  it  be  said  that  these  causes  of 
action  arose  out  of  the  same  transaction?  If  so,  what  was  the 
transaction?  Was  it  the  formation  of  the  company?  That 
created  no  liability  nor  cause  of  action.  Was  it  the  debt  of  the 
plaintiff?  That  created  no  liability  against  the  trustees,  nor 
does  such  liability  arise  out  of  it.  Was  it  the  failure  to  file  a 
certificate  that  the  stock  was  not  paid  in  ?  If  so,  there  is  no  con- 
nection between  that  and  the  transaction  which  created  the 
liability  against  the  defendant  as  trustee.  An  omission  to  record 
a  certificate  that  the  stock  was  paid  is  not,  in  any  sense,  the  same 
transaction  as  the  neglect  of  trustees  to  file  a  report  of  the  finan- 
cial condition  of  tlie  company.     Without  attempting  to  define 


394  The  Complaint.  [Chap.  III. 

the  terms  of  the  last  clause,  I  do  not  think  that  there  is  any 
such  connection  between  the  transactions,  out  of  which  the 
causes  of  action  arose  in  this  case,  and  the  "subject  of  action" 
as  to  justify  uniting  of  the  two  causes  of  action. 

The  causes  of  action  are  independent  of  each  other;  the 
"transactions"  are  different,  and  there  is  no  legal  affinity  be- 
tween them.  The  language  of  the  last  clause  is  more  applicable 
to  equitable  actions  where  the  controversy  is  in  respect  to  spe- 
cific property,  real  or  personal.  It  is  difficult  to  define  in  tliis 
case  the  "subject  of  action."  The  object  of  the  action  is  to  re- 
cover the  debt ;  but  is  the  debt  the  subject  of  action  ?  In  some 
sense  it,  perhaps,  may  be  so  regarded ;  while  in  another  the  sub- 
ject of  action  may  be  regarded  the  penalty  or  forfeiture.  If  the 
former,  there  is  no  natural  connection  between  it  and  the  trans- 
action creating  the  liability.  If  the  latter,  it  has  no  connection 
with  the  transaction  against  the  defendant  as  a  stockholder. 
The  language  of  the  last  clause,  it  seems  to  me,  has  no  applica- 
tion to  this  case,  and  I  am  confident  it  was  never  intended  by  it 
to  force  a  connection  between  such  distinct  and  independent 
things.  It  may  be  convenient  for  the  plaintiff  to  combine  the 
two  causes  of  action,  but,  looking  at  the  rights  of  both  parties 
and  the  rules  of  law,  we  cannot  think  that  the  code  was  designed 
to  authorize  their  union  in  one  complaint. 

The  judgment  must  be  reversed  and  the  demurrer  sustained, 
with  leave  to  the  plaintiff  to  amend  within  the  usual  time. 

Judgment  accordingly. 


DeWOLF  v.  ABRAHAM. 

Court  of  Appeals  of  New  York,  1896.    151  N.  Y.  1S6. 

Bartlett,  J.  The  plaintiff  sued  the  defendants,  merchants 
in  the  city  of  Brooklyn,  for  slander,  alleging  that,  at  their  place 
of  business,  and  in  the  presence  and  hearing  of  a  large  number 
of  people,  the  defendants,  through  their  lawful  agents,  charged 
plaintiff  with  theft,  in  that  she  had  stolen  from  them  a  certain 
ring.  The  plaintiff's  counsel  in  opening  the  case  to  the  jury, 
stated  that  the  alleged  slander  was  not  uttered  by  the  defend- 
ants, or  either  of  them,  but  bv  a  clerk  or  salesman  in  their 


Sec.  3.]  Joinder  op  Causes  op  Action.  395 

employ,  that  plaintiff,  at  the  time  of  the  slander  was  falsely 
imprisoned  by  a  detective  of  defendant's;  and  that  the  plaintiff 
sought  to  recover  damages  for  the  false  imprisonment  and  for 
slander.  Thereupon  the  counsel  for  defendants  moved,  upon  the 
complaint  and  the  opening,  for  a  dismissal,  upon  the  ground 
that  the  defendants  were  not  liable  for  the  slander  of  their 
clerks,  and  that  the  complaint  was  solely  for  slander.  This 
motion  was  denied,  and  the  plaintiff  was  allowed  to  withdraw 
a  juror  for  the  purpose  of  applying  to  the  special  term  for  leave 
to  amend  her  complaint,  so  as  to  allege  a  cause  of  action  for 
false  imprisonment  against  the  defendants.  A  motion  was  ac- 
cordingly made  at  special  term,  and  the  justice  presiding  held 
that  the  proposed  amended  complaint  contained  a  union  of  the 
causes  of  action  for  slander  and  false  imprisonment,  and  denied 
the  motion.  On  appeal,  the  appellate  division  reversed  the  order 
of  the  special  term,  and  allowed  the  amendment,  holding  that 
"injury  at  the  same  time  to  the  person  by  physical  violence  and 
to  the  character  by  the  language  may  well  be  regarded  as  parts 
of  a  single  tort."  The  question  of  law  is  certified  to  us, 
"whether,  under  all  the  circumstances  of  the  case,  the  plaintiff 
should  have  been  allowed  to  amend  her  complaint  for  slander  by 
adding  thereto  the  statement  of  a  cause  of  action  for  false 
imprisonment." 

We  are  unable  to  agree  with  the  conclusion,  reached  by  the 
learned  appellate  division,  that  injury  at  the  same  time  to  the 
person  by  physical  violence  and  to  the  character  by  language 
may  well  be  regarded  as  parts  of  a  single  tort.  We  think  to  so 
hold  is  to  ignore  a  distinction  that  exists  in  all  jurisdictions 
where  the  common  law  is  administered.  It  is  not  necessary, 
however,  to  examine  precedents,  as  the  code  of  civil  procedure 
(section  484)  is  decisive  of  this  appeal.  This  section  provides 
that  the  plaintiff  may  unite  in  the  same  complaint  two  or  more 
causes  of  action,  whether  they  are  such  as  were  formerly  denom- 
inated legal  or  equitable,  or  both,  where  they  are  brought  to 
recover  as  set  forth  in  nine  subdivisions.  The  second,  third  and 
ninth  are  the  only  ones  material  to  this  controversy.  They  read 
as  follows:  "(2)  For  personal  injuries,  except  libel,  slander, 
criminal  conversation  or  seduction.  (3)  For  libel  or  slander. 
*  *  *  (9)  Upon  claims  arising  out  of  the  same  transaction 
or  transactions  connected  with  the  same  subject  of  action  and 
not  included  within  one  of  the  foregoing  subdivisions  of  this 


396  The  Complaint.  [Chap.  III. 

section."  The  section  then  provides  generally  "that  it  must 
appear  upon  the  face  of  the  complaint  that  all  the  causes  of 
action  so  united  belong  to  one  of  the  foregoing  subdivisions  of 
this  section. ' '  It  thus  appears  that  the  legislature  has  indicated 
with  great  clearness  and  particularity  the  causes  of  action  that 
may  be  united  in  the  same  complaint.  The  test  is  very  simple, 
as  all  causes  of  action  united  must  belong  to  the  same  subdivision 
of  the  section  we  are  considering.  False  imprisonment  is  an 
injury  to  the  person,  and  is  embraced  within  subdivision  2,  while 
slander  is  in  express  terms  excluded  therefrom,  and  placed  in 
subdivision  3.  The  plaintiff's  case  is  not  aided  by  subdivision  9 
of  the  section,  which  provides  for  uniting  causes  of  action  upon 
claims  arising  out  of  the  same  transaction.  It  does  not  follow 
that  two  causes  of  action,  originating  at  the  same  time,  arose,  as 
a  matter  of  law,  out  of  the  same  transaction,  or  are  proved  by  the 
same  evidence.  Anderson  v.  Hill,  53  Barb.  245,  246.  In  the 
case  last  cited  the  general  term  of  the  supreme  court  held  that 
causes  of  action  for  assault  and  battery  and  slander  could  not 
be  united  in  the  same  complaint.  Mr.  Pomeroy,  in  his  work  on 
Code  Remedies  (section  474),  in  commenting  on  that  case,  says: 
"Tw^o  events  happened  simultaneously,  the  beating  and  the 
defamation,  but  neither  was  a  'transaction,'  in  any  proper  sense 
of  the  v/ord.  The  wrong  which  formed  a  part  of  one  transaction 
was  the  beating;  that  wliich  formed  a  part  of  the  other  was  the 
malicious  speaking.  The  plaintiff's  primary  rights  which  pre- 
viously existed  were  broken  by  two  independent  and  existing 
wrongs.  The  only  common  point  between  the  causes  of  action 
was  one  of  time,  but  this  uinty  of  time  was  certainly  not  a 
'transaction.'  "  The  separate  and  distinct  nature  of  the  causes 
of  action  of  false  imprisonment  and  slander  are  apparent  when 
we  applj^  the  test,  under  the  circumstances  of  the  case  at  bar, 
whether  the  same  evidence  would  prove  the  plaintiff's  case  in 
the  two  actions.  It  is  obvious  that  it  would  not.  In  the  action 
for  false  imprisonment,  plaintiff  must  show  an  unlawful  arrest 
and  detention.  In  the  action  for  slander,  the  proof  would  be 
the  uttering  of  the  slander  in  the  presence  of  others,  its  falsity, 
if  justified,  and  extrinsic  evidence  of  malice,  if  any  existed. 
The  measure  and  proof  of  damages  in  the  two  causes  of  action 
would  be  entirely  different.  The  order  appealed  from  should  be 
reversed,  with  costs,  the  order  of  the  special  term  should  be 


Sec.  3.]  Joinder  op  Causes  op  Action.  397 

affirmed,  and  the  question  of  law  certified  to  us  is  answered  in 
the  negative.    All  concur. 

Ordered  accordingly. 


CRAFT  REFRIGERATING  CO.  v.  QUINNEPIAC 
BREWING  CO. 

Supreme  Court  of  Connecticut,  1893.     63  Conn.  551. 

Action  to  recover  damages  upon  a  complaint  containing  but 
one  count  sounding  in  contract  and  also  in  tort ;  brought  to  the 
Superior  Court  in  New  Haven  County  and  tried  to  the  jury 
before  George  W.  "Wlieeler,  Jr. 

The  complaint  alleged  a  purchase  by  the  defendant  of  the 
plaintiff  of  two  refrigerating  machines  for  the  agreed  price  of 
$13,700,  and  their  delivery  by  the  plaintiff ;  that  afterwards  the 
defendant  wrongfully  claimed  tliat  said  machines  were  not  of 
the  quality  and  capacity  contracted  for,  and  notified  the  plain- 
tiff to  take  them  away;  that  the  plaintiff,  thereupon,  while 
claiming  that  it  had  fulfilled  the  terms  of  the  contract,  never- 
theless agreed  to  take  the  machines  back,  if  it  could  take  them 
immediately ;  that  it  thereupon  sent  for  them ;  but  the  defendant 
forcibly  prevented  their  removal  and  continued  to  use  the 
machines  as  its  own  property  and  converted  them  to  its  own  use. 
The  defendant  filed  a  special  answer  and  counterclaim  alleging 
a  breach  of  the  contract  on  the  part  of  the  plaintiff  to  furnish 
machines  of  a  specified  capacity,  and  damages  to  the  defendant 
resulting  therefrom.    *     *     * 

The  plaintiff  claimed  that  the  complaint  stated  all  the  ele- 
ments of  a  causeof  action  in  tort  and  one  of  contract ;  that  the 
Practice  Act  merely  requires  the  facts  to  be  set  out,  as  they  we^e 
in  the  present  complaint,  and  that  even  if  those  facts  are  com- 
bined in  one  count,  if  no  preliminary  objection  is  made,  the 
plaintiff  is  entitled  to  proceed  and  recover  on  either  theory. 

The  court  ruled  that  the  two  causes  of  action  could  not  be 
stated  in  one  count,  and  that  the  plaintiff  must  elect  upon  which 
cause  of  action  it  would  stand.  The  plaintiff  declined  to  elect 
and  the  court  rendered  a  judgment  dismissing  the  complaint 


398  The  Complaint.  [Chap.  III. 

and  allowing  costs  to  the  defendant.     From  this  judgment  the 
plaintiff  appealed.^ 

Baldwin,  J.  Complaints,  under  the  practice  act,  are  to  "con- 
tain a  statement  of  the  facts  constituting  the  cause  of  action." 
Gen.  St.  §  872.  This  is  to  be  "a  plain  and  concise  statement  of 
the  material  facts  on  which  the  pleader  relies."  Id.  §  880. 
"Acts  and  contracts  may  be  stated  according  to  their  legal  ef- 
fect." (Practice  Book,  p.  14,  rule  3,  §  1),  and  "the  plaintiff 
may  claim  alternative  relief,  based  upon  an  alternative  con- 
struction of  his  cause  of  action."  (Id.  p.  13,  rule  2,  §  9.)  Sev- 
eral causes  of  action  may  be  united  in  the  same  complaint  if  all 
are  "upon  claims,  whether  in  contract  or  tort,  or  both,  arising 
out  of  the  same  transaction  or  transactions  connected  with  the 
same  subject  of  action ;  but  they  must  be  separately  stated, ' '  and 
"if  it  appear  to  the  court  that  they  cannot  all  be  conveniently 
heard  together,  the  court  may  order  separate  trials  of  any  such 
causes  of  action,  or  may  direct  that  any  one  or  more  of  them  be 
expunged  from  the  complaint."  Gen.  St.  §  878.  "Transactions 
connected  with  the  same  subject  of  action  may  include  any 
transactions  which  grow  out  of  the  subject  matter  in  regard  to 
which  the  controversy  has  arisen;  as,  for  instance,  the  failure 
of  a  bailee  to  use  the  goods  bailed  for  the  purpose  agreed,  and 
also  an  injury  to  them  by  his  fault  and  neglect."  Practice 
Book,  p.  15,  rule  3,  §  7.  Where  separate  and  distinct  causes  of 
action  (as  distinguished  from  separate  and  distinct  claims  for 
relief,  founded  on  the  same  cause  of  action  or  transaction)  are 
joined,  "the  complaint  is  to  be  divided  into  separate  counts." 
Id.  p.  12,  rule  2,  §  4.  Any  exception  for  misjoinder  of  causes 
of  action,  whether  in  the  same  or  separate  counts,  must  be  taken 
by  demurrer,  and  if  not  so  taken,  will  be  deemed  to  be  waived. 
Id.  p.  17,  rule  4,  §  13.  These  various  statutory  provisions  and 
rules  of  court  are  all  designed  to  enable  the  plaintiff  to  state 
his  grievance  to  the  court,  untrammeled  by  artificial  forms  of 
pleading,  and  regardless  of  most  of  the  ancient  distinctions  of 
procedure  as  to  law  and  equity  or  contract  and  tort.  There  is 
no  attempt  to  bring  the  parties  to  issue  upon  some  "single,  cer- 
tain and  material  point."  Eaeh  paragraph  of  the  complaint  is 
to  contain  "as  nearly  as  may  be  a  separate  allegation"  (Gen. 
St.  §  880)  and  it  is  declared  that,  "the  denial  of  any  material 

3  statement   condensed   and   part  of  the  opinion  omitted. 


Sec.  3.]  Joinder  of  Causes  of  Action.  899 

allegation  shall  constitute  an  issue  of  fact"  (Practice  Book, 
p.  17,  rule  4,  §  12.)  If,  in  any  case,  so  many  of  these  issues  are 
formed  that  the  court  fears  the  jury  cannot  dispose  of  them  all 
at  one  hearing,  it  "may  order  that  one  or  more  of  the  issues 
joined  be  tried  before  the  others."  Gen.  St.  §  10.32.  And,  if 
the  issues  made  up  by  the  parties  are  indefinite  or  indecisive, 
the  court  may  direct  them  "to  prepare  other  issues,  and  such 
issues  shall,  if  the  parties  differ,  be  settled  by  the  court."  Id. 
§  880. 

The  plaintiff's  complaint  sets  forth  two  causes  of  action,  stat- 
ing them  in  separate  paragraphs,  but  not  in  separate  counts. 
One  cause  of  action  is  for  the  breach  of  a  contract  to  take,  and 
pay  for,  two  refrigerating  machines,  at  an  agreed  price.     The 
other  cause  of  action  is  for  a  conversion  of  the  machines.     Tt 
was  proper  to  join  these  different  causes  of  action  in  one  com- 
plaint, either  if  both  arose  out  of  the  same  transaction,  or  if, 
while  one  arose  out  of  one  transaction,  and  the  other  out  of 
another,  both  these  transactions  were  "connected  with  the  same 
subject  of  action."     A  transaction  is  something  which  has  been 
transacted,  that  is,  acted  out  to  the  end.     This  notion  of  com- 
pleted   action    strongly    characterizes    the    word    in    the    Latin 
language,  from  which,  through  the  Normans,  we  have  derived  it, 
although  we  gain  little  assistance  otherwise  from  these  sources 
in  determining  its  meaning,  since  both  the  Romans  and  the 
French  have  used  it  mainly  as  a  juridical  term  in  signifying  an 
agreement  of  parties  in  the  settlement  of  differences      Dig.  II, 
15,  "De  Transactionihus" ;  Civil  Code  of  France,  art.  2044.    As 
the  word  is  employed  in  the  American  codes  of  pleading  and 
in  our  own  practice  act,  a  "transaction"  is  something  which 
has  taken  place,  whereby  a  cause  of  action  has  arisen.     It  must 
therefore  consist  of  an  act  or  agreement,  or  several  acts  or  agree- 
ments having  some  connection  with  each  other,  in  which  more 
than  one  person  is  concerned,  and  by  which  the  legal  relations 
of  such  persons  between  themselves  are  altered.    The  transaction 
between  the  parties  to  the  present  action  began  when  they  made 
the  contract  for  the  manufacture  and  sale  of  the  two  machines. 
Then  followed  the  deliver}-  of  the  machines,  the  refusal  to  ac- 
cept them,  the  attempt  of  the  plaintiff  to  retake  them,  the  forci- 
ble prevention  of  their  removal,  and  the  subsequent  continuance 
of  their  use  in  the  defendant's  business.     "Without  taking  each 
and  all  of  these  events  into  consideration,  the  legal  relations  of 


400  The  Complaint.  [Chap.  III. 

the  parties  could  not  be  fully  determined.  From  the  delivery 
of  the  machines  to  the  commencement  of  the  action,  they  had 
remained  continuously  in  the  defendant's  possession.  It  had 
simply  dealt  with  them  in  a  different  way  at  different  times. 
The  practice  act  is  to  be  "favorably  and  liberally  construed  as 
a  remedial  statute."  Practice  Book  p.  21,  rule  9,  §  4.  It  has 
taken  the  word  "transaction,"  not  out  of  any  legal  vocabulary 
of  technical  terms,  but  from  the  common  speech  of  men.  So  far 
as  we  are  aware,  it  has  never  been  the  subject  of  any  exact  judi- 
cial definition.  It  is  therefore  to  be  construed  as  men  commonly 
understand  it,  when  applied,  as  in  our  practice  act  it  certainly 
is  applied  (Gen.  St.  §  878),  to  any  dealings  between  the  parties 
resulting  in  wrongs,  without  regard  to  whether  the  wrong  be 
done  by  violence,  neglect,  or  breach  of  contract.  It  seems  to  us 
hardly  to  be  doubted  that  any  ordinary  man  would  consider 
everything  stated  in  the  complaint  as  properly  belonging  to  a 
narrative  of  the  whole  transaction  between  the  parties,  and 
necessary  for  the  information  of  one  who  was  to  form  a  judg- 
ment as  to  their  respective  rights.  That  a  broader  meaning 
should  be  given  to  the  term  "transaction"  than  it  has  received 
in  some  of  the  courts  of  our  sister  states  is  plain  from  the  pro- 
vision in  the  Practice  Book  (p.  13,  rule  2,  §  7)  that  "where 
several  torts  are  committed  simultaneously  against  the  plaintiff 
(as  a  battery  accompanied  by  slanderous  words)  they  may  be 
joined  as  causes  of  action  arising  out  of  the  same  transaction, 
notwithstanding  they  may  belong  to  different  classes  of  ac- 
tions." This  was  the  deliberate  adoption  of  a  view  of  the 
meaning  of  the  word  in  question  which  had  been  previously  dis- 
approved in  New  York,  as  well  as  by  Judge  Bliss,  in  his  treatise 
on  Code  Pleading  (section  125),  though  accepted  in  Kansas. 
Anderson  v.  Hill,  53  Barb.  238,  245 ;  Harris  v.  Avery,  5  Kan. 
146.  It  follows  that  both  causes  of  action  declared  on  were 
properly  united  in  one  complaint.  The  same  result  would  also 
be  reached  if  what  we  have  viewed  as  one  transaction  could  be 
regarded  as  consisting  of  several  transactions,  since  all  would 
be  connected  with  the  same  subject  of  action ;  that  is,  the  two 
machines,  and  the  title  to  them.    *    *     * 

Judgment  affirmed.^ 

4  The  judgment  was  affirmed   on      been  taken  to  the   order  requiring 
the   ground  that  no  exception  had      plaintiff   to    elect. 


Sec.  3.1  Joinder  op  Caus£s  of  Action.  401 

SCARBOROUGH  v.  SMITH. 

Supreme  Court  of  Kansas,  1877.    18  Kan.  399. 

The  plaintiff  brought  this  action  to  recover  possession  of  an 
undivided  lialf  of  a  tract  of  land  from  which  his  co-tenant  had 
excluded  him,  and  for  partition  of  the  premises.  The  court 
overruled  a  demurrer  for  misjoinder  of  causes  of  action,  and 
the  defendant  appealed.^ 

Valentine,  J.  *  *  *  We  suppose  the  plaintiff  sets  forth 
in  his  petition  three  causes  of  action;  first,  an  action  in  the 
nature  of  ejectment,  under  section  595  of  the  civil  code,  for  the 
recovery  of  his  undivided  half  interest  in  said  real  property; 
second,  an  action  to  recover  the  value  of  his  portion  of  the  rents 
and  profits  of  said  real  property;  (see  Gen.  Stat.  p.  541,  §  22, 
p.  646,  §  83,  sub.  6;)  and  third,  and  an  action  for  partition  of 
said  real  property;  (see  Gen.  Stat.  753  to  755,  §§  614  to  629). 
We  do  not  think  that  the  plaintiff  sets  forth  a  cause  of  action 
to  quiet  title  or  possession,  or  to  remove  a  cloud  therefrom,  for 
he  does  not  show  that  he  is  in  possession  of  the  property  either 
actually  or  constructively — a  necessary  element  in  that  kind  of 
actions;  but  he  does  show  that  others  are  in  the  actual  posses- 
sion of  the  property,  denying  his  right  and  title  to  the  property, 
and  enjoying  the  proceeds  thereof.    *    •    * 

Now  if  the  two  causes  of  action  for  ejectment  and  partition, 
when  united,  constitute  only  one  enlarged  cause  of  action,  then 
it  is  entirely  unnecessary  to  inquire  in  this  case  what  causes  of 
action  may  be  united,  or  to  enquire  whether  the  cause  of  action 
for  rents  and  profits  may  be  united  with  this  enlarged  cause  of 
action ;  for  on  the  final  determination  of  this  action,  in  the  court 
below,  nothing  was  allowed  the  plaintiff  for  rents  and  profits. 
We  shall  however  suppose,  for  the  purposes  of  this  action,  that 
the  two  causes  of  action,  for  ejectment,  and  for  partition,  are 
two  separate  causes  of  action.  Then  can  these  two  causes  of 
action  be  united  in  one  action?  And  can  they  both  be  united 
with  another  cause  of  action  for  rents  and  profits  taken  from 
the  same  real  property?  That  the  cause  of  action  for  eject- 
ment, and  that  for  rents  and  profits,  may  be  united  in  the  same 

6  Statement   condensed   and  part  of  opinion  omitted. 


402  The  Complains.  [Chap.  III. 

action,  there  can  be  no  question.  Section  83  of  the  code  pro- 
vides, that — 

"The  plaintiff  may  unite  several  causes  of  action  in  the  same 
petition,  whether  they  be  such  as  have  heretofore  been  denomi- 
nated legal,  or  equitable,  or  both,  where  they  all  arise  out  of 
either  one  of  the  following  classes ;  *  *  *  Sixth,  Claims  to 
recover  real  property,  with  or  without  damages  for  the  with- 
holding thereof,  and  the  rents  and  profits  of  the  same."  (Gen. 
Stat.  645,  646.) 

The  question  however  still  remains,  as  to  whether  the  cause 
of  action  for  partition  may  be  united  with  the  other  two  causes 
of  action.  This  depends  upon  another  provision  of  said  section 
83  of  the  code.     Said  section  provides  that — 

"The  plaintiff  may  unite  several  causes  of  action  in  the  same 
petition,  whether  they  be  such  as  have  heretofore  been  denomi- 
nated legal,  or  equitable,  or  both,  where  they  all  arise  out  of 
either  one  of  the  following  classes :  First,  The  same  transaction, 
or  transactions  connected  with  the  same  subject  of  action." 

Now  whether  these  three  causes  of  action  may  all  be  united 
in  one  action,  or  rather  whether  the  cause  of  action  for  partition 
may  be  united  with  the  other  two  causes  of  action,  depends  upon 
the  meaning  of  the  words,  "causes  of  action,"  "arise  out  of," 
"transactions,"  "connected  with,"  and  "subject  of  action." 
"We  shall  not  attempt  to  define  these  words  any  further  than  is 
necessary  to  apply  them  to  this  case.  Now  in  this  case  we  have 
three  causes  of  action:  First,  for  ejectment — the  elements  of 
which  are  as  follows :  the  plaintiff  has  a  right  to  the  possession 
and  enjoyment  of  said  real  property  in  common  with  his  co- 
tenant  or  co-tenants — he  one-half,  and  his  co-tenant,  or  co-ten- 
ants the  other  half — but  the  defendants  deprive  him  of  that 
right.  Second,  for  rents  and  profits — the  elements  of  which  are 
as  follows:  the  plaintiff  has  a  right  to  the  use  and  enjoyment 
of  one-half  of  the  rents  and  profits  of  said  real  property,  but 
the  defendants  deprive  him  of  that  right.  Third,  for  partition 
— the  elements  of  which  are  as  follows :  the  plaintiff  has  a  right 
to  the  use  and  enjoyment,  if  he  prefers  it,  to  some  spcific 
moiety  of  said  real  property,  the  same  to  be  set  off  to  him  in 
severalty,  but  the  defendants  deny  and  resist  such  right.  These 
three  causes  of  action  are  in  fact  all  founded  upon,  or,  in  other 
w^ords,  "arise  out  of,"  three  classes  of  infringements  upon  one 
single    right    of   the    plaintiff.      These    infringements    are    the 


Sec.  3.]  Joinder  of  Causes  op  Action.  403 

'transactions"  out  of  which  the  plaintiff's  several  causes  of 
action  arise,  and  are  just  such  ''transactions"  as  are  contem- 
plated in  said  section  83  of  the  code;  and  they  consist  merely 
of  the  acts  of  the  defendants  in  contravention  of  the  said  right 
of  the  plaintiff.  The  word  "transactions,"  as  used  in  said  sec- 
tion, probably  means,  whatever  may  be  done  by  one  person 
which  affects  another's  rights,  and  out  of  which  a  cause  of  ac- 
tion may  arise.  Said  single  right  of  the  plaintiff  in  this  action, 
consists  in  his  right  to  use  and  enjoy,  in  the  manner  he  chooses, 
his  said  interest  in  said  real  property,  with  all  the  proceeds  and 
avails  thereof.  This  right  is  the  "subject  of  action"  in  this  case. 
It  is  the  basis  and  foundation  of  the  whole  action.  Each  of  the 
several  causes  of  action  depends  entirely  for  its  support  upon 
the  soundness  and  validity  of  this  right;  and,  unless  such  right 
can  be  maintained,  this  whole  action  must  fail.  The  phrase, 
"subject  of  action,"  would  probably  ordinarily  have  a  broader 
signification  than  we  have  given  it.  It  would  probably  ordina- 
rily mean,  as  to  each  cause  of  action,  the  entire  "subject-matter 
of  the  action."  But  for  the  purposes  of  uniting  various  causes 
of  action  it  cannot  have  a  broader  signification  than  we  have 
given  it.  Of  course,  it  does  not  include  the  several  "transac- 
tions" "connected  with"  it,  and  out  of  which  the  several  causes 
of  action  arise;  for  the  "subject  of  action"  (the  ''same"  sub- 
ject of  action)  must  be  common  to  all  the  several  causes  of  ac- 
tion which  are  united,  while  the  several  "transactions"  cannot 
be  thus  common.  Each  transaction  or  class  of  transactions 
must  ordinarily  belong  to  a  different  cause  of  action.  And  of 
course,  the  "subject  of  action"  is  not  the  "cause  of  action,"  or 
the  cause  of  any  action,  or  any  cause  of  action.  It  is  simply 
one  of  the  elements  of  each  of  the  several  causes  of  action,  unit- 
ing and  binding  them  together  in  one  action.  The  legislature 
did  not  commit  the  folly  of  enacting,  that  several  "causes  of 
action"  may  be  united  when  they  all  arise  out  of  transTctions 
connected  with  the  same  "cause  of  action."  But  they  enacted, 
that  several  "causes  of  action"  may  be  united  when  they  all 
arise  out  of  transactions  connected  with  the  same  "subject  of 
action."  Neither  can  the  "subject  of  action"  be  the  "object 
of  the  action."  The  "subject  of  action"  must  exist  prior  to  the 
creation  of  the  causes  of  action  which  are  to  be  united ;  for  the 
causes  of  action  are  such  as  "arise  out  of"  transactions  "con- 
nected with"  the  "subject  of  action."    But  the  "object  of  the 


404  The  Complaint.  [Chap.  III. 

action"  is  only  brought  into  existence  by  the  commencement  of 
the  action  itself,  long  after  both  the  "subject  of  action"  and  the 
"causes  of  action"  have  had  an  existence.  The  "object  of  the 
action"  is  the  thing  sought  to  be  attained  by  the  action.  It  is 
the  remedy  demanded,  the  relief  prayed  for,  and  is  no  part  of 
the  "subject  of  action,"  or  the  "cause  of  action."  The  "sub- 
ject of  action,"  then,  not  being  the  whole  of  the  "subject-matter 
of  the  action,"  nor  the  "cause  of  action,"  nor  the  "object  of  the 
action,"  we  think  it  is  just  what  we  heretofore  have  stated  it 
to  be.  It  is  in  this  case,  the  original  right  of  the  plaintiff  to 
enjoy  his  said  property  as  he  pleases.  Now  this  right  being  the 
"subject  of  action,"  and  the  various  infringements  upon  this 
right  being  the  "transactions"  out  of  which  the  plaintiff's  sev- 
eral "causes  of  action"  arose,  it  is  clear  that  all  of  said  "trans- 
actions" are  "connected  with  the  same  subject  of  action;"^  and 
therefore,  that  all  of  the  said  several  causes  of  action  may  be 
united  in  one  action.    *    *    * 

Judgment  affirmed. 


MIDLAND  TERRA  COTTA  CO.  v.  ILLINOIS  SURETY  CO. 
Supreme  Court  of  Wisconsin,  1916.    163  Wis.  190. 

Action  for  the  purchase  price  of  material  sold  and  delivered 
to  J.  W.  Utley,  the  principal  contractor  for  the  construction  of 
a  building  owned  by  the  Edward  Schuster  &  Co.  Inc.  The  Illi- 
nois Surety  Company  is  joined  as  a  defendant  because  it  idemni- 
fied  the  Edward  Schuster  &  Co.  Inc.,  by  a  bond  against  any  fail- 
ure of  the  contractor  to  duly  perform  his  contract.    *    *    * 

Two  causes  of  action  are  set  out  in  the  complaint,  one  against 
Utley  upon  his  contract  of  purchase,  and  against  the  Edward 
Schuster  &  Co.  Inc.  upon  its  express  agreement  with  plaintiff 

6  For  a  most  exhaustive  and  criti-  printing.     It  is  pointed  out  in  tliis 

cal   discussion    of   the    meaning   of  case    that    the    term    "subject    of 

the  terms  "transaction"  and  "sub-  the   action"   is   used   in   a   number 

ject  of  the  action",  see  opinion  by  of    instances    in    the    code    in    the 

the  late   Chief  Justice  Winslow  in  sense    of    the    res    or    property   in- 

McArthur  v.  Moffett,  143  Wis.  564,  volved  in   the  litigation. 
(1910),  which   is   too  long   for  re- 


Sec.  3.]  Joinder  of  Causes  of  Action.  405 

to  pay  for  the  material  furnished  if  plaintiff  would  forbear  to 
file  a  mechanic's  lien  against  the  premises,  which  it  forebore  to 
do  relying  upon  such  agreement ;  the  other,  against  Utley  upon 
the  same  contract  of  purchase  and  against  the  Illinois  Surety 
Company  upon  its  liability  on  the  bond. 

The  Illinois  Surety  Company  demurred  to  the  complaint  on 
the  ground  that  several  causes  of  action  have  been  improperly 
united  therein  for  the  reason  that  the  causes  of  action  stated  in 
the  complaint  do  not  affect  all  the  parties  to  the  action.  The 
court  sustained  the  demurrer  and  the  plaintiff  appealed.''' 

ViNjE,  J.  In  the  case  of  Concrete  S.  Co.  v.  Illinois  S.  Co., 
ante  p.  41,  157  N.  W.  543,  it  was  held  that  the  Illinois  Surety 
Company  was  directly  liable  to  a  subcontractor  under  the  pro- 
vision of  its  bond  set  out  in  the  statement  of  facts.  The  defend- 
ant Edward  Schuster  &  Co.  Inc.  is  liable  upon  its  express  prom- 
ise to  pay,  given  as  a  consideration  for  plaintiff's  forbearance 
to  perfect  a  mechanic's  lien.  The  defendant  Utley  is  liable  upon 
both  causes  of  action  set  out  in  the  complaint,  for  they  are  both 
based  upon  the  same  facts,  namely,  that  he  purchased  and 
agreed  to  pay  for  the  materials.  We  have,  therefore,  this  sit- 
uation :  One  defendant  is  liable  on  both  causes  of  action,  each 
of  the  other  two  defendants  is  liable  upon  a  separate  cause  of 
action  from  the  other,  and  is  in  no  way  related  to  or  affected 
by  the  cause  of  action  pleaded  against  its  codefendant.  The 
Edward  Schuster  &  Co.  Inc.  is  not  a  party  to  nor  affected  by  the 
provision  in  the  bond  that  renders  the  Illinois  Surety  Company 
liable  to  the  plaintiff,  and  the  Illinois  Surety  Company  in  turn 
is  not  a  party  to  nor  affected  by  the  promise  of  Edward  Schuster 
&  Co.  Inc.  to  pay  plaintiff  for  the  material  if  it  would  forbear 
to  file  a  lien.  Both  these  defendants  are  sued  upon  an  inde- 
pendent promise  individual  to  itself.  The  fact  that  it  is  for  the 
same  debt  makes  no  difference.  The  statutory  test  is  not  whether 
the  causes  of  action  pleaded  arise  out  of  the  same  transaction, 
but  whether  they  affect  all  the  parties  to  the  action.  Plaintiff 
may  have  two  recoveries,  but  it  can  have  only  one  satisfaction. 

Sec.  2647,  Stats.  1913,  as  amended  by  ch.  219,  Laws  1915,  still 
requires  that  all  causes  of  actions  united  in  a  complaint  must 
affect  all  the  parties  to  the  action.  This  complaint  violates  that 
section,  in  that  the  cause  of  action  set  out  against  the  Illinois 

7  Statement  condensed. 


406  The  Complaint.  [Chap.  III. 

Surety  Company  does  not  affect  the  Edward  Schuster  &  Co. 
Inc.  and  in  that  the  cause  of  action  against  the  latter  does  not 
affect  the  former.  The  cases  cited  by  plaintiff  do  not  touch  the 
precise  question  at  issue.  They  relate  generally  to  the  subject 
of  who  are  necessary  or  proper  parties  to  an  action.  The  re- 
quirement that  the  causes  of  action  which  may  be  united  in  a 
complaint  must  affect  all  the  parties  to  the  action  is  as  imper- 
ative now  as  it  has  been  ever  since  sec.  2647  was  first  enacted. 
Our  court  has  uniformly  held  that  causes  of  action  founded 
upon  different  rights  of  recovery  cannot  properly  be  united  un- 
less all  the  parties  to  the  action  are  affected  by  each  cause 
pleaded.*  Greene  v.  Nunnemacher,  36  "Wis.  50;  Hoffman  v. 
Wheelock,  62  Wis.  434,  22  N.  W.  713,  716 ;  Hughes  v.  Hunner, 
91  Wis.  116,  64  N.  W.  887;  Blakely  v.  Smock,  96  Wis.  611,  71 
N.  W.  1052;  Haw^arden  v.  Youghiogheny  &  L.  C.  Co.,  Ill  Wis. 
545,  87  N.  W.  472 ;  Tyre  v.  Krug,  159  Wis.  39,  149  N.  W.  718. 

Order  affirmed. 


RINARD  V.  0.  K.  C.  &  E.  R.  R.  CO. 

Supreme  Court  of  Missouri,  1901.    164  Mo.  270. 

Marshall,  J.  This  is  an  action  for  damages  for  the  killing 
of  plaintiff's  husband,  caused  by  a  collision  of  two  tr  'us  upon 
the  defendant's  road,  near  Gait,  in  Grundy  County,  on  Dec.  23, 
1897.  The  plaintiff  obtained  a  verdict  for  five  thousand  dollars 
and  the  defendant  appealed. 

The  amended  petition  contains  three  counts. 

The  first  count  alleges  that  Samuel  W.   Rinard,  plaintiff's 

8  A  number  of  cases  dealing  with  the  parties  to  the  two  instruments 

the  problem  of  misjoinder  because  were    not    the    same;    Plankington 

of  a   difference  in   parties  will  be  v.  Hildebrand,  89  Wis,  209,  (1895), 

found  in  the  section  dealing  with  same  facts, 
the  joinder  of  parties,  ante,  p.  166.  Hawarden  v.  Coal  Co.,  Ill  Wis. 

For    other    situations    where    the  545,  count  in  favor  of  one  of  the 

joinder  is  improper  for  this  reason,  plaintiffs    joined   with    a   count   in 

see    Doan    v.    Halley,    25    Mo.   357,  favor   of   all   the   plaintiffs;    Clark 

(1857),  count  on  a  promissory  noto  v.  Ey.,  31  Wash.  658,  count  against 

joined    with    a    count   to    foreclose  two     defendants     joined     with     a 

the    mortgage,    securing   it,    where  count    against    one   of    them, 


Sec.  3.]  Joinder  op  Causes  of  Action.  407 

husband,  was  in  the  employ  of  the  defendant  as  assistant  road- 
master,  and  that  it  was  his  duty  to  pass  over  the  defendant's 
road  and  to  ride  in  its  cars ;  that  on  Dec.  23,  1897,  while  riding 
in  the  caboose  of  one  of  defendant's  trains,  knoA\Ti  as  a  work 
train,  near  Gait,  it  collided  with  another  train  on  defendant's 
road,  and  he  was  injured  so  that  he  died.  It  further  alleges 
"that  the  train  upon  which  the  plaintiff's  said  husband  was 
riding  was  backing,  going  west  from  or  near  the  city  of  Gait  to 
the  town  of  Dunlap ;  that  the  other  said  train  so  colliding  with 
said  work  train  was  going  east  towards  the  city  of  Gait,  and 
that  whilst  so  running  and  moving  in  opposite  directions  upon 
the  same  track,  said  trains  collided,  the  engine  of  the  train  so 
going  east  and  the  caboose  of  the  work  train  aforesaid  striking 
each  other  with  great  force."  Then  after  alleging  that  the  de- 
ceased was  without  negligence  or  fault,  the  petition  charges  that 
the  collision  was,  "the  result  of  and  occasioned  by  the  negli- 
gence of  the  servants,  officers,  agents  and  employees  of  defend- 
ant while  running,  conducting  and  managing  said  locomotives, 
cars  and  trains  aforesaid." 

The  second  count  charges  that  the  deceased  was  engaged  "in 
directing  and  managing  divers  other  persons,  and  assisting  them 
somewhat  in  the  taking  up  of  certain  rails  and  ties  upon  de- 
fendant's roadbed  and  railway  aforesaid,  and  in  replacing  and 
relaying  the  same  with  other  rails  and  ties,  and  in  doing  and 
directing  other  things  in  and  about  defendant's  roadbed  and 
tracks ;  that  said  work  was  being  done  by  certain  person  or  per- 
sons, company,  or  corporation,  being  styled  and  designated  as 
the  'Missouri  Railway  Construction  Company';  that  whether 
said  person  or  persons,  corporation  or  company,  was  in  fact  de- 
fendant or  an  association  of  persons,  composed  of  directors,  of- 
ficers or  other  persons  connected  with  the  defendant,  or  a  mere 
myth,  plaintiff  is  unable  to  say,  and  as  to  whether  said  work 
was  being  done  under  contract  between  defendant  and  said 
company — pretended  or  real — plaintiff  is  unable  to  state,  but 
plaintiff  avers  the  facts  to  be,  that  said  work  was  being  done 
with  the  knowledge  and  consent  of  the  defendant  and  its  officers. 
And  plaintiff  further  avers  the  facts  to  be,  that  in  the  discharge 
and  performance  of  her  said  husband's  f Samuel  W.  Rinard) 
duties,  it  became  necessary,  as  a  part  thereof,  (as  was  well 
known  by  defendant)  that  he,  said  Rinard,  ride  from  place  to 
place  upon  said  defendant's  railroad  upon  defendant's  trains, 


408  The  Complaint.  [Chap.  111. 

especially  its  work  or  construction  train  which  said  train  was 
provided  and  furnished  by  the  defendant  to  transport  him  (said 
S.  W.  Rinard)  from  place  to  place  in  safety  over  its  said  line  of 
road  where  said  S.  W.  Rinard,  in  the  discharge  of  his  duties 
aforesaid,  was  required  to  be  and  work,  and  that  under  said  S. 
W.  Rinard 's  employment  ofresaid,  he  was  required  to  work  and 
be  upon  divers  parts  of  the  defendant's  said  roadbed  and  line 
of  railway  between  the  city  of  Trenton,  in  said  Grundy  County, 
and  the  city  of  Milan,  in  Sullivan  county,  Missouri."  The  col- 
lision and  negligence  is  then  charged  as  in  the  first  count. 

The  third  count  charges  that  the  defendant,  for  a  valuable 
consideration,  undertook  to  transport  the  deceased  on  one  of  its 
trains  known  as  its  "work  extra"  or  "work  train,"  from  at  or 
near  the  city  of  Gait  to  the  village  of  Dunlap,  and  that  while  so 
riding  the  collision  occurred.  The  negligence  charged  was  as 
in  the  first  count. 

The  original  petition  contained  only  the  first  count.  When 
the  amended  petition  was  filed  the  defendant  moved  to  require 
the  plaintiff  to  elect  on  which  count  she  would  stand,  and  upon 
this  motion  bemg  overruled,  the  defendant  moved  to  strike  out 
the  second  and  third  counts,  as  being  a  departure  from  the 
original  cause  of  action  pleaded  and  as  being  inconsistent  v.ith 
the  first  count,  and  upon  this  motion  being  overruled,  the  de- 
fendant moved  to  require  the  plaintiff  to  make  each  count  more 
definite  and  certain  by  specifying  the  officer,  agent,  or  employee 
whose  negligence  occasioned  the  injury,  and  upon  what  partic- 
ular train  such  officer  was  negligent,  and  this  motion  being  over- 
ruled the  defendant  filed  an  answer,  which  is  a  general  denial 
and  a  plea  of  contributory  negligence.    ♦    *    * 

The  refusal  of  the  trial  court  to  compel  the  plaintiff  to  elect 
upon  which  count  in  the  petition  she  would  stand,  is  assigned 
as  error. 

It  is  claimed  that  the  counts  are  inconsistent,  in  that  the  first 
count  alleges  that  deceased  was  an  employee  of  the  defendant  as 
assistant  roadmaster,  while  the  second  count  alleges  that  he  was 
an  employee  of  the  Missouri  Railway  Construction  Company, 
and  the  third  count  alleges  that  he  was  a  passenger. 

On  the  other  hand,  the  plaintiff  contends  that  the  gravamen 
of  the  three  counts  is  the  negligent  running  of  the  trains — one 
or  both — which  caused  the  collision  that  produced  the  death,  and 
that  the  character  of  the  deceased's  relation  or  non-relation  to 


Sec.  3.]  Joinder  op  Causes  of  Action.  409 

the  defendant  is  immaterial  as  it  is  liable  in  any  event,  whether 
the  deceased  was  its  servant  or  that  of  the  construction  company 
or  was  a  passenger,  and,  hence,  that  the  cause  of  action  is  single 
and  the  same,  but  is  stated  in  different  forms  in  the  three  counts 
to  meet  any  phase  of  the  proofs,  and,  therefore,  the  plaintiff 
cannot  be  compelled  to  elect,  and  a  general  verdict  for  the  plain- 
tiff is  good. 

It  is  as  true  today  as  it  ever  was  that  repugnancy  in  pleading 
is  not  permissible.  But  to  render  a  pleading  bad  the  repugnancy 
must  be  such  that  proof  of  one  state  of  facts  pleaded  as  a  basis 
for  a  recovery  will  necessarily  disprove  another  state  of  facts 
pleaded  as  such  a  basis.  A  plaintiff  may  plead  a  single  cause  of 
action  in  as  many  different  counts  as  he  chooses,  to  meet  any 
possible  state  of  the  proofs,  and  this  will  not  make  his  counts 
repugnant.  (Brownell  v.  R.  R.  Co.,  47  Mo.  239;  Brinkraan  v. 
Hunter,  73  Mo.  172;  St.  Louis  Gas  Light  Co.  v.  St.  Louis,  86 
Mo.  495;  Lancaster  v.  Insurance  Co.,  92  Mo.  460.)  If  any  one 
of  the  counts  in  a  petition  so  framed  is  good,  it  will  support  a 
general  verdict.  (Idem.)  This  being  true,  a  plaintiff  cannot  be 
compelled  to  elect  upon  which  count  he  will  stand.^ 

In  the  case  at  bar,  the  cause  of  action  is  single.  It  is  not 
material  whether  the  deceased  was  a  servant  of  the  defendant, 
or  of  the  construction  company,  or  a  passenger,  for  his  widow's 
right  to  recover  is  not  impaired  in  either  case,  under  the  laws 
of  this  state  as  they  now  and  were  December  23,  1897,  when  the 
accident  occurred.  (Powell  v.  Sherwood,  162  Mo.  605.)  There 
was  no  error  in  overruling  the  motion  to  elect.    *    *    * 

Judgment  affirmed. 


ASTIN  V.  C.  M.  &  ST.  P.  RY.  CO. 

Supreme  Court  of  Wisconsin,  1910.    113  Wis.  477. 

Action  to  lecover  compensation  for  damages  alleged  to  have 
been  caused  to  the  surviving  widow  of  plaintiff's  intestate  by 

9  See  also  Briekman  v.  Hunter,  nient  as  an  acceptance  and  in  an 
73  Mo.  172,  that  it  was  proper  to  other  on  the  same  instrument  aa 
declare  in  one  count  on  an  instru       a  promise  to  accept. 


27 


410  The  Complaint.  [Chap.  III. 

the  wrongful  conduct  of  defendant's  employees,  causing  his 
death. 

The  complaint  states  a  cause  of  action  based  on  the  theory 
that  ordinary  negligence  of  defendant's  servants  was  the  prox- 
imate cause  of  the  death  of  plaintiff's  intestate,  and  a  second 
cause  of  action  grounded  on  the  theory  that  gross  negligence 
of  such  servants  was  such  cause,  in  that  they,  in  utter  disregaid 
of  the  personal  safety  of  such  intestate  and  conscious  of  hij 
peril,  caused  a  locomotive  under  their  charge  and  control  to 
collide  with  him  at  a  public  crossing  of  defendant's  track,  caus- 
ing his  death. 

On  motion  in  defendant's  behalf  plaintiff  was  ordered  to  elect 
between  the  two  causes  of  action  on  which  he  would  rely.  Upon 
failure  to  comply  therewith  and  on  motion  in  defendant's  be- 
half, the  action  was  dismissed  and  judgment  rendered  accord- 
ingly.   Plaintiff  appealed  therefrom. 

Marsh.vll,  J.  If  a  person,  owing  a  duty  to  another  respect- 
ing that  other's  personal  safety,  violates  it,  inflicting  upon  such 
other  corporal  injury,  under  such  circumstances  that  it  is  diffi- 
cult for  him,  by  the  aid  of  professional  advice  to  satisfactorily 
determine  whether  the  violation  was  characterized  by  what  is 
known  as  gross  negligence,  or  by  the  milder  type  of  wrong  de- 
nominated ordinary  negligence — may  such  person  have  the 
wrong,  whatever  be  its  nature,  redressed  in  a  single  action  to 
recover  for  his  injury,  pleading  in  one  cause  of  action  liability 
on  the  ground  of  gross  negligence  and  in  a  second  on  the  ground 
of  ordinary  negligence?  That  is  the  broad  question  raised  by 
the  appeal. 

Solution  of  the  stated  question  involves  the  letter  of  the  writ- 
ten law  and  its  spirit  as  well,  and  also  our  judicial  Code  on  the 
subject  of  actionable  negligence.  That  a  person,  who  has  suf- 
fered a  personal  injury  by  actionable  fault,  may  be  so  circum- 
stanced as  not  to  be  able  to  truthfully  assert  with  certainty 
whether  the  act  be  of  the  higher  or  the  lesser  degree  of  action- 
able negligence,  as  the  full  scope  of  the  term  is  understood  here 
and  in  many  other  jurisdictions — is  most  naural.  That  he 
should  not  be  obliged,  regardless  of  circumstances — to  seek  re- 
dress on  one  theory  alone,  his  recoverable  compensatory  dam- 
ages, whether  claimed  upon  one  theory  or  the  other,  being  the 
same  and  dependable  upon  the  same  act,  and  if  he  fails,  even 
\ipon  the  ground  that  proof  of  a  degree  of  actionable  wrong  not 


Sec.  3.]  Joinder  of  Causes  op  Action.  411 

alleged  negatives  the  one  alleged,  the  evidence  of  every  physical 
fact  being  practically  the  same  in  one  case  as  in  the  other,  leav- 
ing the  particular  degree  only  a  matter  of  inference  of  fact,  he 
must  go  out  of  court,  commence  over  again  and  submit  the  same 
evidence  to  another  jury — would  seem  to  be  the  ease;  testing 
the  matter  from  the  standpoint  of  reason  and  common  sense. 

Our  Code  of  written  law  respecting  the  joinder  in  one  suit  of 
two  or  more  causes  of  action  possessed  by  one  person  against 
another,  connected  with  a  single  subject  of  action,  is  very  broad. 
Yet  it  has  its  limitations,  pretty  well  defined  in  the  letter  of  the 
statute  and  further  defined  by  more  than  half  a  century  of  ad- 
ministration of  it. 

The  limitations  of  the  written  law  are  not  so  free  from  am- 
biguity but  that  the  court,  progressively,  has  broadened  the  lit- 
eral meaning  rather  than  adhered  strictly  thereto,  much  less 
restricted  it,  ''looking  to  the  evils  intended  to  be  remedied,  the 
object  intended  to  be  attained,  the  effects  and  consequences,  the 
reason  and  spirit." 

Many  interferences  with  the  speedy  attainment  of  justice 
under  the  old  system,  growing  out  of  arbitrary  and  technical 
rules  were  intended  to  be  substantially,  if  not  entirely  super- 
seded by  the  Code.  Thereby  the  course,  from  initiation  to  final- 
ity, in  the  redress  of  wrongs,  was  intended  to  be  as  plain,  as 
simple,  as  certain,  as  speedy,  as  complete  and  as  economical  as 
practicable  in  the  judgment  of  the  wise  men  who  framed  it. 
Whether  their  broad  concept  of  the  result  has  been  fully  real- 
ized may  admit  of  some  doubt.  If  so,  that  the  fault  may  well 
be  attributed  somewhat  to  that  judicial  inertia,  as  regards  turn- 
ing from  a  long  established  system,  the  creation  of  courts,  which 
made  such  turning  slow  in  some  cases  and  only  under  coercion 
in  others;  could  hardly  be  gainsaid.  However,  that  this  court 
is  exceptionally  free  from  any  just  criticism  in  that  regard,  and 
that  opportunity  therefor  has  been  growing  progressively  re- 
mote, the  history  of  our  jurisprudence  must  bear  unmistakable 
evidence. 

Viewing  the  broad  subject  under  discussion  in  the  light  of 
the  foregoing  it  would  seem  that  a  logical  way  must  exist,  per- 
mitted, if  not  commanded,  by  the  Code — when  read  in  the  at- 
titude of  liberality  which  conceived  it — for  vindicating  in  a 
single  action  the  right  in  such  a  situation  as  the  one  suggested, 
whether  inferences  from  evidence  shall  finally  locate  the  wrong, 


412  The  Complaint.  [Chap.  III. 

in  case  of  one  being  established,  within  the  field  of  ordinary  or 
that  of  gross  negligence.  If  there  be  such  way  and  be  no  inter- 
fering adjudications,  and  yet  be  no  exact  precedent  to  illustrate 
it,  it  should  be  adopted  and  a  new  precedent  made,  vindicating 
again  judicial  competency  and  willingness  to  efficiently  face  new 
situations  in  harmony  with  the  manifest  spirit  of  the  written 
law.  If  there  be  no  such  logical  way,  the  responsibility  is  with 
the  lawmaking  power.    *    *    * 

It  follows  from  the  situation  stated,  that  a  cause  of  action 
sounding  in  ordinary  negligence  is  one  thing,  and  one  sounding 
in  gross  negligence  is  another.  Proof  of  the  latter  disproves 
the  former.  Pleading  of  the  one  by  itself,  in  effect,  pleads  that 
the  other  does  not  exist.  They  are  essentially  different  yet  the 
actual  wrong  and  the  actual  injury,  and  the  compensation  equiv- 
alent in  money,  is  the  same,  whether  the  cause  of  action  be  in 
the  one  or  the  other.  That  suggests  that  there  can  be  but  one 
recovery  therefor,  but  one  efficient  cause  of  action  in  the  ulti- 
mate. The  difficulty,  as  before  indicated,  lies,  in  the  main,  in 
fair  doubt  on  the  part  of  the  pleader  as  regards  the  proper  in- 
ference to  be  drawn  from  evidentiary  facts.  Such  facts  may  be 
entirely  common  to  the  two  situations. 

So  we  return  to  the  opening  inquiry.  Why  in  the  name  of 
the  broad  beneficent  spirit  of  the  Code  cannot  justice  be  ren- 
dered in  a  single  action  and  upon  a  single  trial  according  as  the 
jury  may  reasonably  draw  the  inference  of  fact?  If  it  cannot 
then  perhaps  the  written  law  is  infirm  where  the  unwritten  was 
not. 

If  we  could  view  the  situation  under  discussion  as  involving 
two  causes  of  action  in  the  ordinary  sense,  the  Code  provisions 
governing  the  matter  are  subdivisions  1  and  3  of  section  2647, 
St.  1898.  The  one  permits  joining  two  or  more  causes  of  action 
arising  out  of  the  same  transaction,  or  transactions  connected 
with  the  same  subject  of  action.  The  other  permits  joining  two 
or  more  causes  of  action  for  "injuries  with  or  without  force, 
to  person  or  property."  Both  are  subject  to  the  limitation  that 
the  causes  must  belong  to  one  class,  affect  all  the  parties,  not 
require  different  places  of  trial,  and  be  stated  separately.  It  is 
manifest  without  discussion  that  the  two  causes  of  action,  so- 
called,  in  the  situation  before  us  amply  satisfy  the  letter  of  all 
those  requirements.  Do  they  satisfy  the  real  meaning  of  the 
term  "several  causes  of  action"  as  used  in  the  statute? 


Sec.  3.]  Joinder  op  Causes  op  Action.  413 

There  is  room,  as  an  original  matter,  to  hold  that  the  statute 
contemplates  the  existence  of  causes  of  action,  each  to  redress 
a  wrong  of  some  sort  so  far  independent  of  the  redress  of  any 
wrong  involved  in  any  other  cause  of  action,  that  a  recovery  in 
one  will  not,  necessarily,  militate  against  a  recovery  at  the  same 
time  in  the  other.  Would  not  such  a  holding,  leaving  no  room 
for  exceptions,  be  construing  the  written  law  restrictively,  con- 
trary to  the  ordinary  rule  requiring  remedial  statutes  to  be  lib- 
erally construed?  If  a  restrictive,  rather  narrow  construction 
were  necessary  to  carry  out  a  manifest  intent,  then  it  would  be 
legitimate. 

Is  there  the  manifest  intent  above  referred  to  further  than  to 
the  extent  of  excluding  from  the  scope  of  the  statute  the  idea  of 
joinability  of  two  causes  of  action,  satisfying  the  letter  of  either 
subdivision  referred  to,  in  a  case  where  the  assertion  of  the  right 
to  a  remedy  by  one  cause  of  action  irrevocably  waives  the  right 
to  redress  by  any  other;  as  a  situation  affording  the  wronged 
party  opportunity  to  sue  for  damages  on  contract,  on  the  theory 
of  its  continued  existence,  or  rescind  and  sue  to  recover  the  con- 
sideration parted  with  on  the  contract,  on  the  theory  that  it  no 
longer  exists?  Does  the  spirit  of  the  statute  clearly  extend  to 
a  situation  where,  instead  of  there  being  opportunity  for  a 
choice  of  remedies  by  irrevocably  surrendering  others  which  are 
inconsistent  therewith,  there  are  two  merely  apparent  remedies, 
though  only  one  in  fact,  such  two  not  being  inconsistent  in  the 
very  groundwork,  but  only  in  the  mere  assertion  of  the  existence 
of  a  particular  essential  element  in  one,  negativing  existence  of 
a  particular  essential  element  in  the  other,  the  two  being  claimed 
because  of  uncertainty  as  to  which  is  proper  ?  In  that  situation 
does  the  unsuccessful  assertion  of  one  preclude  claiming  the 
benefit  of  the  other? 

That  the  doctrine  of  election  does  not  apply  to  a  mere  choice 
of  a  wrong  remedy,  is  familiar.  Fuller-Warren  Company  v. 
Barter,  110  Wis.  80,  85  N.  W.  698,  53  L.  R.  A.  603,  84  Am.  St. 
Rep.  867;  Clausen  v.  Head,  110  Wis.  405,  410,  85  N.  W.  1028, 
84  Am.  St.  Rep.  933.  If  the  idea  that  the  intent  of  the  statute 
was  to  exclude  joining  causes  of  action  upon  that  species  of  in- 
consistency, it  is  easy  to  see  that  it  is  inefficient  to  justly  respond 
to  the  needs  of  such  situations  as  the  one  under  discussion  and 
many  others. 

The  inconsistency  precluding  the  joining  of  causes  of  action, 


414  The  Complaint.  [Chap.  III. 

■which  we  find,  in  general,  treated  in  the  books,  is  of  such  char- 
acter that  the  doctrine  of  fatal  election  above  indicated  applies. 
For  instance  it  is  said  in  Maxwell  on  Code  Pleading  at  345 : 

"If  the  vendor  in  his  petition  seeks  to  recover  a  judgment 
for  the  unpaid  purchase  money,  and  also  to  have  the  contract 
canceled  because  of  the  failure  of  the  vendee  to  pay  the 
amount  due,  the  causes  of  action  cannot  be  joined,  because  the 
action  to  recover  the  amount  due  is  an  affirmance  of  the  con- 
tract."   *    *    * 

We  perceive  no  reason  for  departing  from  anything  decided 
in  the  cases  referred  to.  They  do  not  militate  against  both 
causes  of  actionable  wrong  being  stated  in  the  same  complaint, 
if  stated  separately,  substantially  eliminating  indefiniteness  as 
to  plaintiff's  position  by  indicating,  clearly,  that  he  does  not 
Imow  precisely  the  phase  of  actionable  wrong  the  evidence  and 
inferences  therefrom  will  disclose  and  that,  therefore,  he  pro- 
poses to  challenge  defendant  on  both  and  recover  on  the  one 
actually  possessed,  but  not  on  the  other.  It  follows  from  the 
fact  that  the  two  causes  of  action  belong  to  the  same  class,  sat- 
isfy in  all  respects  the  letter  of  the  statute  respecting  the  joinder 
of  causes  of  action,  and  are  not  inconsistent  in  that  claiming  the 
benefit  of  one  necessarily  waives  the  other.  They  are  only  in- 
consistent in  that  though  one,  for  precautionary  purposes  claim 
the  benefit  of  both,  he  can  have,  in  the  ultimate,  the  benefit  of 
but  one  and  not  that  one  except  upon  a  verdict  definitely  and 
consistently  finding  the  facts. 

The  foregoing  answers  the  propositions  stated  for  decision  in 
the  opening  lines  of  this  opinion.  It  vindicates  the  letter  and 
likewise  the  spirit,  before  referred  to,  of  the  Code.  It  regards 
every  phase  of  our  judicial  code  of  negligence  law,  as  the  same, 
without  material  change,  has  stood  the  test  of  more  than  half 
a  century  of  administration,  and  vindicates  and  harmonizes  all 
the  holdings  of  the  court  relating  to  the  subject  under  discus- 
sion, leading  logically  to  a  decision  in  this  case  that  the  trial 
court  erred  in  requiring  plaintiff  to  stand  upon  one  of  his  defi- 
nitely stated  causes  of  action,  abandoning  the  other,  and  erred  in 
dismissing  the  case  for  noncompliance  with  such  require- 
ment. ^^    *     *    * 

Judgment  reversed. 

10  But  see  Payne  v.  Ry.,  201  N.  there  need  be  no  separate  state- 
y.  436,    (1911),  to    the   effect   that      nient  of  claims  at  common  law  and 


Sec.  3.]  Joinder  op  Causes  of  Action.  415 

FRANCE  &  CANADA  S.  S.  CO.  v.  BERWIND. 

Court  of  Appeals  of  New  York,  1920.    229  N.  Y.  89. 

Elkus,  J.  The  amended  complaint  contains  three  causes  of 
action.  The  claim  arises  because  of  the  chartering  of  the  steam- 
ship Hc7-mes  by  the  plaintiff  to  the  defendant.    *    *    * 

A  demurrer  to  the  complaint  was  interposed  upon  the  ground 
that  some  of  the  causes  of  action  were  inconsistent,  viz.,  that  the 
first  was  in  tort  while  the  others  were  on  contract. 

The  following  question  has  been  certified  to  this  court: 

Have  causes  of  action  been  improperly  united  in  the  amended 
complaint  herein,  by  uniting  a  cause  of  action  for  fraud,  induc- 
ing the  making  of  a  contract,  with  a  cause  of  action  for  th(! 
breach  of  such  contract? 

The  defendant  claims  that  the  first  cause  of  action  is  for  a 
fraud  in  inducing  the  plaintiff  to  enter  into  the  contract  or 
charter  party,  the  fraud  being  a  representation  by  the  defend- 
ant that  it  had  secured  the  necessary  Federal  export  license  to 
permit  the  export  of  coal,  which  representation  was  alleged  to 
be  false ;  that  the  second  cause  of  action  is  for  the  breach  of  the 
contract  in  not  paying  the  entire  charter  hire,  and  the  third 
cause  of  action  is  for  damages  for  the  breach  of  the  contract  in 
failing  to  secure  the  same  Federal  license ;  and  that  these  causes 
cannot  be  united  because  one  is  for  damages  for  a  breach  of  the 
contract  and  the  other  is  for  damages  for  a  fraud  in  being  in- 
duced to  enter  into  the  contract  and  that  such  causes  of  action 
are  inconsistent. 

The  plaintiff  claims  that  the  two  causes  of  action,  the  first  and 
third,  are  not  inconsistent  because  both  proceed  upon  the  theory 
of  an  affirmance  of  the  contract,  in  fact,  that  all  three  do,  and 
the  defrauded  party  is  entitled  to  both  the  benefits  of  the  con- 
tract and  to  the  damages  caused  by  fraud  and  that  these  causes 
of  action  may  be  united  in  one  complaint  under  the  provisions 
of  subdivision  9  of  section  484  of  the  Code  of  Civil  Procedure. 
This  subdivision  expressly  authorizes  the  uniting  of  causes  of 
action  upon  claims  arising  out  of  the  same  transaction  or  trans- 
actions connected  with  the  same  subject  of  action. 

The  Special  Term  overruled  the  demurrer  without  opinion 

under  a  statute  for  the  same  injury. 


416  The  Complaint.  [Chap.  III. 

and  the  Appellate  Division,  by  a  divided  court,  reversed  this 
decision  and  sustained  the  demurrer,  with  majority  and  dissent- 
ing opinions. 

The  majority  opinion  holds  that  the  first  cause  of  action  is 
an  action  in  tort  and  that  this  cannot  be  united  with  an  action 
upon  the  contract  in  the  same  complaint ;  that  the  proof  of  the 
first  cause  of  action  disproves  the  proof  of  the  third;  that  the 
theory  of  the  first  is  that  by  the  fraudulent  representation  the 
plaintiff  was  induced  to  enter  into  a  contract  and  suffer  damage 
and  that  the  theory  of  the  third  cause  of  action  is  that  the  pos- 
sibility of  the  delay  causing  the  damage  was  foreseen  and  an 
express  agreement  was  made  to  pay  a  liquidated  sum  for  such 
delay;  that  the  proof  of  this  provision  in  the  contract  would 
disprove  an  essential  allegation  in  the  first  cause  of  action  that 
the  plaintiff  entered  into  the  contract  on  the  representation  that 
there  would  be  no  delay. 

The  Code  section  cited  (Sec.  484,  subd.  9)  provides  that 
causes  of  action  may  be  united  even  though  one  be  in  tort 
and  one  on  contract,  if  they  arise  out  of  the  same  transaction. 
The  tort  alleged  in  the  first  cause  of  action  arose  out  of  the  same 
transaction  as  did  the  third  cause  of  action,  but  it  is  said  that 
even  if  this  be  so  they  are  inconsistent  and,  therefore,  cannot  be 
pleaded  in  the  same  complaint.  That  is  the  ground  upon  which 
the  Appellate  Division  decided  this  case. 

The  allegations  set  forth  in  the  first  cause  of  action  are  not  in 
violation  of  or  contrary  to  the  contract  of  hiring.  The  plaintiff 
does  not  plead  these  allegations  in  an  attempt  to  avoid  or  set 
aside  the  contract,  but  does  allege  that,  in  order  to  induce 
him  to  enter  into  the  contract  at  the  price  named,  the  defend- 
ant represented  that  it  had  the  Federal  license  necessary  to  per- 
mit the  sailing  of  the  steamer  and,  therefore,  the  plaintiff  would 
not  be  delayed  while  the  license  was  being  procured.  Practical- 
ly the  defendant  said  to  the  plaintiff:  "We  have  the  license 
and  you  may  enter  into  the  contract  on  the  assumption  that  you 
will  be  able  to  sail  as  soon  as  the  cargo  is  loaded  on  the  steamer. ' ' 
The  defendant  did  not  have  the  license  when  the  cargo  was 
loaded  and  it  did  not  arrive  until  two  or  three  days  thereafter. 

The  plaintiff  says  in  his  first  cause  of  action:  "You  induced 
me  to  charter  the  vessel  on  the  theory  that  you  had  the  license. 
I  would  not  have  done  so  had  I  not  believed  your  statement  to 
be  true."     This  is  in  affirmance  of  the  contract  and  it  is  upon 


Sec.  3.]  Joinder  op  Causes  op  Action.  417 

this  affirmance  of  the  contract  the  plaintiff  wants  to  recover  an 
additional  sum,  not  provided  in  the  contract  but  growing  out 
of  the  same  circumstances  and  out  of  the  same  facts.^ 

Section  484,  subdivision  9,  of  the  Code  of  Civil  Procedure  is 
broad  in  its  meaning.  Its  proper  construction  requires  a  clear 
conception  of  the  meaning  of  the  word  "transaction."  We  need 
only  consider  the  word  as  applied  to  contractual  relations.  The 
meaning  as  applied  to  contracts  is  the  embryo  stage  where  the 
inducements  to  and  proposed  obligations  of  all  parties,  having 
been  fully  considered  and  with  all  parties  together,  either  in 
fact  or  figuratively,  a  contract  is  about  to  be  made  and  is  made. 
In  such  case  the  contract  is  the  fruit  of  the  transaction.  Bound 
within  the  limits  of  the  ' '  transaction ' '  are  the  inducements  upon 
which  the  minds  met  and  the  contract  arising  from  such  meet- 
ing of  minds. 

It  is  elemental  that  damages  cannot  be  recovered  in  excess  of 
the  actual  damage  sustained.  The  question  of  damage  is  for  the 
jury.  The  question  in  this  case  is  whether  the  damage  alleged 
in  the  first  cause  of  action,  arising  out  of  false  representations 
in  the  transaction  is  the  same  damage  for  which  a  demurrage 
is  provided  in  the  contract  made  in  the  transaction  as  alleged 
in  the  third  cause  of  action.  This  is  a  matter  to  be  determined 
upon  the  proof  submitted  upon  a  trial.  (Bowen  v.  Mandeville, 
95  N.  Y.  237 ;  Gould  v.  Cayuga  National  Bank,  99  N.  Y.  333, 
339,  340;  Morgan  v.  Skidmore,  3  Abb.  N.  C.  92;  20  Cyc.  87; 
Vail  v.  Reynolds,  118  N.  Y.  297,  302,  303 ;  Heckscher  v.  Eden- 
born,  203  N.  Y.  210;  Pryor  v.  Foster,  130  N.  Y.  171,  176;  Wil- 
son V.  New  U.  S.  Cattle  Ranch  Co.,  73  Fed.  Rep.  994,  997 ;  Union 
Central  Life  Ins.  Co.  v.  Schidler,  130  Ind.  214 ;  Van  Vliet  Flet- 
cher Auto.  Co.  V.  Crowell,  171  la.  64.)     *    *    * 

The  order  of  the  Appellate  Division  appealed  from  should  be 
reversed,  with  costs,  and  the  question  submitted  answered  in 
the  negative. 

Order  reversed. 

1  But  it  has  been  held  inconsist-  a  count  at  law  for  breach  of  the 
ent  to  join  a  count  in  equity  to  contract,  Eose  v.  Sheldon,  119  S. 
cancel  a  contract  for   fraud,  with      W.  225,  (1909). 


418  The  Complaint.  [Chap.  III. 

II.    The  Separate  Statement. 

CHILDS  V.  BANK  OF  MISSOURI. 

Supreme  Court  of  Missouri,  1852.    17  Mo.  213. 

Childs  brought  an  action  under  the  new  code,  alleging  that 
the  defendant  had  falsely  accused  and  caused  him  to  be  accused 
of  embezzlement,  and  upon  this  charge  had  unjustly  and  mali- 
ciously, and  without  probable  cause,  caused  him  to  be  arrested 
and  imprisoned ;  that  under  the  color  of  a  search  warrant,  the 
defendant  had  obtained  possession  of  certain  valuable  papers, 
and  evidences  of  debt  belonging  to  the  plaintiff;  that  the  de- 
fendant had  caused  the  dwelling  house  of  the  plaintiff  to  be 
beset  by  armed  men  by  day  and  by  night,  thus  restraining  the 
plaintiff  and  his  family  of  their  liberty,  and  interrupting  their 
intercourse  with  their  friends ;  and  that  the  defendant  had  false- 
ly and  maliciously  caused  the  plaintiff  to  be  indicted  and  pros- 
ecuted; for  all  which  grievances,  the  plaintiff  claimed  damages 
to  the  amount  of  fifty  thousand  dollars. 

A  demurrer  to  this  petition  was  sustained,  and  the  cause  is 
brought  to  this  court  by  writ  of  error. 

Ryland,  Judge,  delivered  the  opinion  of  the  court: 

*  *  *  2.  The  new  code  of  practice  says  the  "plaintiff  may 
unite  in  his  petition  as  many  causes  of  action  as  he  may  have." 
Art.  7,  §  12.^  The  petition  shall  contain  "a  statement  of  the 
facts  constituting  the  cause  of  action,  in  ordinary  and  concise 
language,  without  repetition,  and  in  such  manner  as  to  enable 
a  person  of  common  understanding  to  know  what  is  intended." 
Art.  6,  §  1. 

In  New  York,  the  code  says  the  complaint  shall  contain  "a 
plain  and  concise  statement  of  the  facts  constituting  the  cause 
of  action,  without  unnecessary  repetition,"  and  the  plaintiff 
can  unite  several  causes  of  action  in  the  same  complaint,  when 
they  are  of  the  same  nature.  How  unite  them?  By  mixing 
them  up  in  one  undistinguished  and  undistinguishable  mass? 
Clearly  not;  reason  forbids  this.  It  needs  not  the  results  of 
centuries  of  experience  to  show  us  how  inconvenient  this  would 
be.     See  6  Howard's  Practice,  Rep.  298. 

1  For  the  present  statute,  see  a  nte,  p.  269. 


Sec.  3.]  Joindee  of  Causes  op  Action.  419 

In  New  York,  where  they  have  greatly  improved  the  code 
since  it  was  first  adopted,  they  require  each  distinct  cause  of 
action  to  be  set  down  with  precision  and  particularity;  and  if 
the  plaintiff  fails  to  make  the  proper  statements,  they  will  be 
stricken  out  as  redundant.  He  is  not  permitted  to  throw  the 
burden  of  analysing  his  complaint,  and  of  separating  the  causes 
of  action  on  the  court;  nor  is  the  defendant  required  to  do  this 
at  his  peril.    See  the  case  above  cited. 

Now  under  our  statute,  where  the  plaintiff  is  permitted  to  put 
in  his  petition  as  many  causes  of  action  as  he  may  have,  no  mat- 
ter what  may  be  their  nature  or  origin,  there  is  still  greater 
necessity  for  him  to  mark  each  cause  distinctly ;  separate  each 
cause  from  its  neighbor  with  proper  marks  and  with  proper  dis- 
tinctness, or  "the  person  of  common  understanding"  may  not 
be  able  to  know  what  was  intended;  indeed  the  most  acute  pro- 
fessional mind  may  be  at  a  loss  to  know  what  is  intended. 

These  observations  are  necessary  in  order  to  make  plaintiffs 
more  particular  and  careful.  We  have  already  decided,  that 
multifariousness  and  duplicity  are  defects  under  our  law  yet ; 
we  have  not  said  that  they  can  be  reached  by  a  demurrer;  nor 
will  we ;  but  then  there  is  a  remedy*  for  such  defects. 

In  this  case,  we  cannot  say  the  action  is  brought  to  recover  a 
sum  of  money;  nor  can  we  call  it  an  action  for  malicious  pros- 
ecution nor  false  imprisonment.  It  is  one  sui  generis.  It  was 
among  the  first  brought  under  our  new  code,  and  it  is  not  to  be 
wondering  at,  for  really  our  oldest  and  best  lawyers  find  them- 
selves hesitating — pausing  to  know  what  to  do. 

Upon  the  whole  of  the  matter  set  forth  in  the  petition,  it  is  to 
be  seen,  that  if  such  things  did  take  place  as  therein  charged 
against  the  bank,  its  servants  or  agents  or  officers  may  be  re- 
sponsible to  the  persons  injured,  and  against  such  the  law  af- 
fords a  remedy. 

The  judgment  below  should,  then,  be  affirmed,  and  such  being 
the  opinion  of  Judge  Scott  (Judge  Gamble  not  sitting  in  this 
cause),  it  is  affirmed  accordingly. 

8  It  is  now  settled  that  the  ob-  ratelv  should  be  taken  by  motion 
jection  that  several  caiises  of  ac-  instead  of  demurrer,  Bass  v.  Com- 
tion    have    not    been    stated    sepa-       stock,  38   N.  Y.   21,    (1868). 


420  The  Complaint.  [Chap.  III. 

FAESI  V.  GOETZ. 

Supreme  Court  of  Wisconsin,  1862.    15  Wis.  231. 

By  the  Court,  Paine,  J.'  This  was  an  action  to  foreclose  a 
mortgage,  in  which  a  personal  judgment  was  claimed  for  the 
deficiency.  There  was  a  demurrer  for  misjoinder  of  causes  of 
action,  and  the  plaintiff  had  judgment  for  the  frivolousness  of 
the  demurrer. 

"We  have  several  times  decided  such  demurrers  not  to  be  friv- 
olous, and  subsequently  that  they  were  well  taken,  where  the 
different  cause  of  action  did  not  affect  all  the  different  parties. 
Walton  V.  Goodnow,  13  Wis.  661 ;  Sauer  v.  Steiubauer,  14  id. 
70;  Gary  v.  Wheeler,  id.  281.  Even  if  we  were  inclined  to  re- 
view our  latter  decision,  holding  the  demurrer  well  taken,  we 
certainly  should  not  hold  it  frivolous.  But  the  argument  of 
counsel  in  this  case  did  not  change  our  opinion.  It  was  based 
entirely  on  the  fact  that  all  the  facts  stated  in  the  complaint 
were  necessarily  stated  to  establish  the  equitable  cause  of  action, 
to  bar  a  redemption.  This  being  so,  it  was  said,  that  as  the  com- 
plaint did  not  profess  to  state  any  second  cause  of  action  sep- 
arately, therefore  it  must  be  held  to  state  only  one,  although  the 
relief  demanded  included  a  judgment  both  for  the  legal  and  the 
equitable  cause  of  action.  We  think  this  position  cannot  be  sus- 
tained, for  the  reason  that  although  all  the  facts  stated  were 
necessary  to  the  equitable  cause  of  action,  it  is  equally  apparent 
that  they  are  entirely  sufficient  for  both  causes  of  action.  And 
therefore,  to  determine  whether  they  were  set  forth  for  the  pur- 
pose of  showing  both  causes  of  action,  the  prayer  for  relief  must 
be  looked  to.  And  this  clearly  shows  that  the  intention  of  the 
pleader  was  to  proceed  for  both  causes  of  action,  as  has  always 
been  the  practice  here,  until  the  statute  providing  for  it  was  re- 
pealed. The  intention  being  thus  apparent,  and  the  facts  stated 
entirely  sufficient  to  accomplish  that  intent,  it  would  be  allow- 
ing the  pleader  to  take  advantage  of  his  own  fault,  to  escape 

8  The    report    fails    to    give    any      that    only    one    of   the    defendants 
statement  of  the  facts  in  this  case,      was   liable   on  the   note.  Ed. 
but  it   appears  from  the  syllabus 


Sec.  3.]  Joinder  op  Causes  of  Action,  421 

from  a  demurrer  on  the  ground  that  he  did  not  state  the  two 
causes  of  actions  separately  * 

Judgment  reversed. 


CURTIS  V.  MOORE. 
Supreme  Court  of  Wiscorisin,  1862.    15  Wis.  134. 

Appeal  from  an  order  overruling  a  demurrer  to  a  complaint 
in  an  action  for  slander.^ 

Dixon,  C.  J.  *  *  *  The  complaint  in  this  action  contains 
three  counts,  charging  the  speaking  of  the  slanderous  words  at 
different  times  and  in  the  presence  of  different  individuals;  the 
matter  of  inducement  prior  to  the  colloquium  such  as  the  pend- 
ency of  the  action  before  the  justice,  the  calling  of  the  plaintiff 
as  a  witness,  etc.,  being  stated  only  in  the  first.  The  second  and 
third  counts  refer  to  the  first.  In  the  first,  the  words  are 
charged  to  have  been  spoken  in  the  presence  of  one  Peter 
Sprague  and  divers  others  citizens,  but  the  words  and  hearing 
are  omitted.  This  is  said  to  be  fatal  to  this  count.  The  others 
are  not  objected  to.  The  demurrer  is  to  the  whole  complaint.  It 
is  an  elementary  principle,  that  if  one  of  several  counts  in  a  dec- 
laration be  proved  (although  the  proof  of  all  the  others  should 
fail),  the  party  must  recover  upon  it,  unless  it  be  radically  in- 
sufficient in  law.  For  by  maintaining  one  good  count,  he  estab- 
lishes a  complete  right  of  recovery.  And  for  the  same  reason,  if, 
on  demurrer  to  the  ivhole  declaration,  any  one  of  the  counts 
is  adjudged  sufficient  in  law,  the  plaintiff  will  be  entitled  to 
judgment  on  that  count,  though  all  the  others  be  defective. 
Gould's  PI.  ch.  IX,  §  1;  1  Chitty's  PI.  664. 

4  Where  a  cause  of  action  at  law  of  equity  granted  legal  relief  as 
is  properly  joined  in  the  same  com-  an  incident  to  the  main  case  in 
plaint  with  one  in  equity,  they  equity,  such  as  reforming  a  con- 
should,  of  course,  be  separately  tract  and  awarding  damages,  or 
stated,  Natoma  Mining  Co.  v.  compelling  the  execution  of  a  deed 
Clarkin,  14  Cal.  545,  (1860),  (case  and  awarding  possession,  ante  pp. 
in  ejectment  joined  with  an  appli-  29-37. 

cation    for    an   injunction    to    stay  5  Statement   condensed   and   part 

waste,    pending    the    action).  of  the  opinion  omitted. 

Compare  those  cases  where  courts 


422  The  Complaint.  [Chap.  III. 

But  it  is  urged  that  as  the  matters  of  inducement  are  stated 
in  the  first  count  only,  if  that  be  defective,  the  others  must  fail 
also — that  no  reference  can  be  made  to  such  inducement  for  the 
purpose  of  sustaining  them.  And  we  are  referred  to  Nelson  v. 
Swan,  13  Johns.  483,  where  it  was  held,  on  a  demurrer  to  the 
whole  declaration,  one  count  being  confessedly  bad,  reference 
could  not  be  made  to  it  for  the  purpose  of  aiding  the  other.  It 
is  undoubtedly  true,  as  a  general  rule,  that  each  count  must 
stand  or  fall  by  itself,  and  that  one  cannot  be  helped  out  by  the 
allegations  of  another.  In  that  case,  each  count,  taken  by  it- 
self, was  bad  in  substance,  and  the  court  very  properly  decided 
that  they  could  not  look  to  the  first  for  the  sake  of  supplying 
the  defects  of  the  second  in  matters  relating  to  the  gravamen  of 
the  action.  But  in  matters  of  mere  inducement  the  question  is 
quite  different.  It  is  not  only  allowable,  but  correct  practice 
requires,  to  avoid  unnecessary  repetition  of  the  same  matter, 
that  in  the  subsequent  counts  reference®  should  be  made  to  the 
first,  where  the  inducement  is  the  same,  in  which  case  it  is  con- 
sidered as  if  it  were  repeated  in  each  count.  1  Chitty's  PI.  473. 
The  first  count  may,  therefore,  fail  as  to  the  cause  of  action 
stated  in  it,  and  yet  stand  good  as  to  the  inducement  in  aid  of 
the  others.  If  it  be  conceded  that  the  first  count  is  bad,  a  ques- 
tion which  we  do  not  examine,  the  demurrer  must  still  be  over- 
ruled.   *    *    * 

Order  affirmed. 


GERTLER  v.  LINSCOTT. 

Supreme  Court  of  Minnesota,  1879.    26  Minn.  82. 

GiLFiLLAN,  C.  J.  The  complaint  sets  forth  two  causes  of  ac- 
tion. The  first  is  upon  a  contract  between  the  plaintiff  and  the 
defendant,  providing  for  and  regulating  the  separate  enjoyment 
by  each  of  them,  at  alternate  periods,  of  a  mill,  of  which  they 
were  tenants  in  common,  and  also  providing  for  the  payment, 
by  each,  of  an  agreed  part  of  the  expenses  in  keeping  the  mill  in 

6  The  reference  must  be  suffi-  sought  to  be  incorporated,  Jaspei 
ciently  specific  to  identify  the  part       v.  Hazen,  2  N.  D.  401. 


Sec.  3.]  Joinder  of  Causes  of  Action.  423 

a  suitable  condition  for  business.  The  second  cause  of  action 
is  in  form  for  a  tort,  in  wrongfully  drawing  off  and  diverting 
water  from  a  stream  and  pond  on  which  the  "mills"  which 
plaintiff  and  defendant  were  running  and  using  were  situated. 
To  the  complaint  there  is  a  demurrer,  on  the  ground  that  several 
causes  of  action,  to-wit,  one  upon  contract,  and  one  for  tort,  are 
improperly  united. 

There  is  no  doubt  that  the  two  causes  of  action  in  this  com- 
plaint cannot  be  united,  unless  within  the  first  class  specified  in 
Gen.  Sts.  c.  66,  §  98;  that  is,  unless  they  are  included  in  "the 
same  transaction,  or  transactions  connected  with  the  same  sub- 
ject of  action."  As  a  general  rule  a  cause  of  action  upon  con- 
tract cannot  be  joined  to  one  for  tort ;  and  where  they  are 
joined,  the  joinder  is  improper  unless  it  appear  from  the  com- 
plaint that  they  come  within  the  first  class  in  that  section,  and 
so  are  excepted  from  the  general  rule.  The  phrase  in  the  stat- 
ute, "the  same  transaction,  or  transactions  connected  with  the 
same  subject  of  action,"  is  very  indefinite,  and  it  is  difficult  to 
define  satisfactorily  the  causes  intended  to  be  covered  by  it. 
But  it  is  evident  that  where  a  cause  of  action  of  one  class  is 
stated,  the  statement  of  another  cause  of  action  belonging  to 
another  class  must  show  that  they  are  parts  of  the  same  single 
transaction,  or  of  a  series  of  transactions  all  connected  together, 
not  independent  of  each  other,  and  all  connected  with  the  same 
subject  of  action.  The  complaint  in  this  case  does  not  meet 
this  requirement. 

The  facts  stated  in  a  first  cause  of  action  will  not  help  the 
statement  of  a  second,  except  so  far  as  the  statement  of  them  in 
the  first  is  referred  to  in,  and  made  by  such  reference  a  part  of, 
the  statement  of  facts  in  the  second.  In  this  case  neither  cause 
of  action  refers  to  the  facts  stated  in  the  other.  We  might  con- 
jecture that  the  "mills"  mentioned  in  the  second  are  the  same 
as  the  mill  or  mills  mentioned  in  the  firet.  That  is  as  far  as  we 
could  get  towards  finding  a  connection  between  the  two  causes 
of  action,  even  if  it  were  permitted  to  indulge  in  conjecture, 
and  that  would  be  far  from  enough  to  justify  the  two  causes 
in  one  action.    The  demurrer  was  well  taken. 

Order  reversed. 


424  The  Complaint.  [Chap.  III. 

COMMISSIONERS  OF  BARTON  CO.  v.  PLUMB. 

Supreme  Court  of  Kansas,  1878.    20  Kan.  147. 

(Reprinted  anfe  p.  .)'' 


MERRIMAN  v.  McCORMICK  COMPANY. 
Supreme  Court  of  Wisconsin,  1893.    86  Wis.  142. 

Appeal  from  an  order  denying  a  motion  to  make  the  com- 
plaint more  definite  and  certain.^ 

Orton,  J.  *  *  *  The  order  appealed  from,  as  well  as  the 
first  order  at  chambers,  was  clearly  correct.  The  complaint  does 
not  appear  to  be  liable  to  the  objections  named  in  the  rule.  It 
was  sufficiently  definite  and  certain  as  to  the  purpose  of  the 
several  causes  of  action,  and  they  need  not  be  stated  in  separate 
counts. 

The  complaint  states  that  the  defendants  broke  and  entered 
the  plaintiffs'  close,  entered  their  shops,  warerooms,  yards,  and 
premises,  and  took  and  carried  away  and  converted  to  their 
own  use  one  binder  and  harvester,  one  mower,  seven  pieces  of 
canvas,  a  lot  of  gray  irons,  a  large  quantity  of  repairs,  and 
various  other  articles,  pieces  of  machinery,  goods,  wares,  and 
merchandise,  the  goods  and  property  of  the  plaintiffs,  of  various 
values,  whereby  the  plaintiffs  suffered  great  damage  in  the  loss 
of  said  property  and  in  the  interruption  to  their  business  car- 
ried on  in  said  shops,  warerooms,  and  yard,  and  they  were  in- 
jured in  their  business  standing  and  credit,  and  were  damaged 
in  all  of  the  foregoing  in  the  sum  of  $2,000.  The  learned  coun- 
sel of  the  appellants  contend  that  there  are  three  several  and 
distinct  causes  of  action:  (1)  Trespass  quare  clausum;  (2) 
trover  and  conversion;  (3)  injury  to  business  and  credit;  and 
that  they  should  be  stated  in  separate  counts.  This  form  of  the 
complaint  in  such  a  case  has  been  sanctioned  by  the  common-law 

7  See    also    in    this     connection,  8  Statement   condensed   and  part 

Boyce  v.  Christy,  ante,  p.  8;   Mil-       of  opinion  omitted, 
lard  V.  Ey.,  ante,  p.  16. 


Sec.  3.]  Joinder  of  Causes  of  Action.  425 

practice  of  a  great  many  years  in  England  and  in  this  country 
as  the  approved  form  of  pleading.  There  is  but  one  cause  of 
action,  and  that  is  trespass  quare  clausum  f regit,  and  the  other 
continuous  acts  of  the  defendants  are  stated  as  the  consequential 
damages  arising  therefrom  and  connected  therewith.  In  the 
latest  case  in  this  court  upon  the  question,  Sayles  v.  Bemis,  57 
"Wis.  316,  the  complaint  was  that  the  defendant  with  force  and 
arms  broke  and  entered  the  plaintiff's  premises,  and  tore  down 
the  fence,  and  the  plaintiff's  cow  got  out  and  strayed  from  the 
premises  and  was  drowned,  and  by  reason  of  these  acts  of  the 
defendant  the  plaintiff  was  damaged  $64.  It  was  held  that  there 
was  but  one  action,  and  that  of  trespass  quare  clausum,  and 
that  the  other  statements  were  for  the  consequential  damages 
arising  therefrom;  and  that,  if  these  damages  were  not  proved, 
the  plaintiff  would  be  entitled  to  recover  nominal  damages  for 
the  breaking  and  entering. 

The  approved  forms  in  Chitty's  Pleading  (2  Chit.  PI.  616) 
are  as  follows:  "Broke  and  entered"  and  "injured  fences  and 
gates,  cut  down  trees,  and  dug  holes,"  and  "took  and  carried 
away  plaintiff's  corn,  and  converted  the  same  to  his  own  use," 
and  "seized  and  took  plaintiff's  goods,  iron,  hops,  household 
furniture,  etc.,  and  converted  the  same  to  his  own  use."  These 
forms  are  under  the  heading  of  ' '  Trespass  to  Lands, ' '  and  these 
allegations  are  for  the  consequential  damages  arising  therefrom. 
It  will  be  noticed  that  the  complaint  here  is  nearly  in  the  exact 
form  of  the  above.  See,  also  McCall's  Forms,  248;  1  Abb. 
Forms,  471 ;  1  Chit.  PI.  395  et  seq. ;  2  Greenl.  Ev.  §  273,  and 
note;  Johnson  v.  Gorham,  38  Conn.  519;  Jordan  v.  Staples,  57 
Me.  352 ;  Belden  v.  Granniss,  27  Conn.  513 ;  White  v.  Moseley, 
8  Pick.  356;  and  other  references  in  plaintiff's  brief. ^ 

By  the  Court. — The  order  of  the  circuit  court  is  affirmed,  and 
the  cause  remanded  for  further  proceedings  according  to  law. 

9  Compare  Cardozo,  J.,  in  Jacobus  personal   property   it   may   not   be 

V.   Colgate,   217  N.  Y.  235    (1916).  maintained.    The  complaint  alleges 

*     *     *  that  a  stock  of  flour,  wheat,  flour 

"If  the   action   fails  to  the   ex-  sacks    and    bran    sacks,    and    also 

tent  that  it  is  brought  to  recover  office    furniture,    stationery,    books 

damages  for  injuries  to  real  estate,  of     account,     and     other     personal 

the    question   remains    whether    to  property  were   contained   "in   and 

the    extent    that   it   is   brought    to  about     said     building     or     on     the 

recover    damages    for    injuries    to  premises    of    said    milling   plant.'' 


426  The  Complaint.  [Chap.  III. 

McHUGH  V.  ST.  LOUIS  TRANSIT  CO. 

Supreme  Court  of  Missouri,  1905.    190  Mo.  85. 

Burgess,  J.  This  is  an  action  for  damages  alleged  to  have 
been  sustained  by  the  plaintiff,  resulting  from  injuries  received 
in  an  accident  which  occurred  at  the  intersection  of  Delmar  and 
Euclid  avenues,  in  the  city  of  St.  Louis,  on  the  1st  day  of  April, 
1901,  by  reason  of  one  of  the  cars  of  the  defendant,  in  which 
plaintiff  was  a  passenger,  being  started  forward  with  a  jerk  just 
as  plaintiff  was  in  the  act  of  alighting  therefrom.  The  petition 
alleges  that  as  such  car  approached  said  Euclid  avenue  and 
Delmar  avenue   defendant's  conductor  in   charge   of  said  car 


All  this  personal  property  is  stated 
to  have  been  destroyed.  On  the 
one  side,  the  plaintiff  contends 
that  there  are  two  causes  of  ac- 
tion, a  cause  of  action  for  the  in- 
jury to  the  realty,  and  another 
for  the  injury  to  the  personal  prop- 
erty upon  it.  On  the  other  side, 
the  defendant  contends  that  there 
is  but  a  single  cause  of  action  for 
injury  to  the  realty,  and  that  the 
injury  to  the  personal  property  is 
merely  aggravation  of  the  damages. 
We  think  our  decision  in  Eeilly 
V.  Sicilian  Asphalt  Co.  (170  N.  Y. 
40)  requires  us  to  hold  that  two 
causes  of  action  have  been  stated. 
In  that  case  we  held  that  where 
a  single  act  works  injury  alike  to 
one's  person  and  to  one's  property, 
the  causes  of  action  are  distinct. 
We  pointed  out  that  they  are  gov- 
erned by  different  limitations  (170 
N.  Y.  at  p.  44).  Like  considera- 
tions are  applicable  here.  A  single 
act  has  injured  realty  and  person- 
alty. One  cause  of  action  is  local 
and  the  other  transitory.  The  act 
is  single,  but  its  consequences  are 
divisible.  (See  also:  Stone  v.  United 
States,  167  U.  S.  178,  182;  Barney 
V.  Burstenbinder,  7  Lans.  210).  We 
do  not  overlf^ok  decisions  referred 


to  by  the  defendant  in  which  aver- 
ments of  injury  to  personalty  were 
held  to  be  merely  incidental  (Ellen- 
wood  V.  Marietta  Chair  Co.,  158 
U.  S.  105;  Houghtaling  v.  Hough- 
taling,  5  Barb.  379;  Hill  v.  Barthol- 
omew, 71  Hun,  453;  Whatling  v. 
Nash,  41  Hun,  579).  In  all  those 
cases  a  wrongful  entry  upon  land 
was  the  gist  of  the  action.  The 
plaintiff  could  not  prove  the  injury 
to  the  personal  property  "without 
also  proving  the  trespass  upon  real 
estate"  (Ellenwood  v.  Marietta 
Chair  Co.,  supra).  But  here  a 
wrongful  entry  is  not  even  alleged. 
The  defendant  set  fire  to  the  prop- 
erty, but  he  may  have  done  this 
without  going  upon  the  land  at  all. 
It  does  not  even  appear  that  the 
fire  was  applied  to  the  buildings 
first,  and  that  it  then  spread  to 
their  contents.  The  personal  prop- 
erty is  described,  not  only  as  "in 
and  about  the  buildings,"  but  also 
as  "on  the  premises"  of  the  plant. 
The  allegations  moreover  permit 
the  inference  that  it  was  substan- 
tial in  quantity  and  value.  We 
see  no  reason  why  an  action  for 
injury  to  that  property  may  not 
be  litigated  in  our  courts."     *   *  * 


Sec.  3.]  Joinder  of  Causes  op  Action.  427 

called  out  "Euclid  Avenue!"  aud  said  car  was  stopped  at  or 
near  said  crossing,  plaintiff's  destination,  and  plaintiff  there- 
upon, at  said  invitation,  proceeded  to  alight  from  said  car 
whilst  the  same  was  so  stopped,  and  whilst  she  Avas  in  the  act 
of  alighting,  and  before  she  had  reasonable  time  or  opportunity 
to  do  so,  defendant's  servants  in  charge  of  said  car  carelessly 
and  negligently  caused  and  suffered  said  car  to  be  started, 
whereby  the  plaintiff  was  thrown  from  said  car,  and  sustained 
great  and  permanent  injuries  upon  her  body  and  legs,  and  also 
great  and  permanent  internal  injuries,  sustaining  an  injury  to 
her  knee  and  to  her  side,  causing  a  compression  to  her  side  and 
chest  and  injury  to  her  lungs,  and  causing  her  to  have  pleurisy, 
and  also  injuring  her  head,  aud  causing  a  great  and  permanent 
injury  to  her  nervous  system.  And  the  plaintiff  avers  that  at 
the  time  of  her  said  injury  there  was  in  force  in  the  city  of  St. 
Louis  an  ordinance  of  said  city  by  which  it  was  provided  that 
conductors  of  street  cars  should  not  allow  women  or  children  to 
enter  or  leave  the  car  whilst  the  same  was  in  motion,  yet  the 
plaintiff  avers  that  defendant's  conductor  in  charge  of  said  car, 
in  violation  of  said  ordinance,  caused  said  car  to  start  in  motion 
whilst  plaintiff  was  leaving  it,  and  allowed  the  plaintiff  to  leave 
said  car  whilst  the  same  was  in  motion,  which  violation  of  said 
ordinance  directly  contributed  to  cause  plaintiff's  said  injuries. 
The  answer  was  a  general  denial  and  a  plea  of  contributory  neg- 
ligence on  the  part  of  plaintiff'  in  attempting  to  alight  from  a 
moving  car  150  feet  east  of  the  eastern  line  of  Euclid  av- 
enue.   *    *    * 

At  the  opening  of  plaintiff's  case,  and  again  at  the  close  of 
all  the  evidence,  defendant  moved  the  court  to  require  plaintiff 
to  elect  upon  which  cause  of  action  alleged  in  the  petition  she 
would  proceed  to  trial.  Defendant  insists  that  the  petition  con- 
tains two  separate  and  distinct  causes  of  action,  and  that  the 
court  erred  in  overruling  said  motions.  The  argument  is  that 
the  first  cause  of  action  is  for  the  negligent  acts  of  the  conductor 
in  calling  out  "Euclid  Avenue,"  stopping  the  ear  at  the  plain- 
tiff's destination,  and  while  she,  at  his  invitation,  was  proceed- 
ing to  alight  therefrom,  while  the  car  was  standing,  and  before 
she  had  reasonable  time  or  opportunity  to  do  so,  the  car  was 
negligently  caused  and  suffered  to  be  started,  whereby  the  plain- 
tiff was  thrown  and  injured ;  w^hile  the  other  cause  of  action  is 
for  the  negligent  act  of  the  conductor  in  alloAnng  the  plaintiff 


428  The  Complaint.  [Chap.  III. 

to  leave  the  car  while  the  same  was  in  motion,  in  violation  of 
an  ordinance,  which  violation  directly  contributed  to  plaintiff's 
injury.  That  the  petition  states  two  causes  of  action  is,  we 
think,  clear — the  first  an  action  at  common  law  for  negligence; 
the  other  an  action  for  damages  alleged  to  have  been  sustained 
by  plaintiff  by  reason  of  the  alleged  negligence  of  defendant's 
conductor  in  charge  of  the  car  in  which  plaintiff  was  a  passen- 
ger in  permitting  her  to  leave  said  car  whilst  the  same  was  in 
motion,  in  violation  of  the  ordinances  of  the  city  of  St.  Louis. 
They  are  independent  of  each  other,  and  upon  either  an  action 
might  be  maintained,  but  they  cannot,  under  the  rules  of  good 
pleading,  be  embraced  in  the  same  count.  If  embraced  in  the 
same  petition,  they  should  be  in  separate  counts,  with  a  prayer 
for  judgment  at  the  conclusion  of  each  count.  When  separate 
causes  of  action  are  united  in  the  same  petition,  each  must  be 
distinctly  and  separately  stated,  with  the  relief  sought  to  each 
cause  of  action  in  such  manner  that  they  may  be  intelligently 
distinguished.  Section  593,  Rev.  St.  1899;  Childs  v.  Bank  of 
Missouri,  17  Mo.  213 ;  Mooney  v.  Kennett,  19  Mo.  551,  61  Am. 
Dec.  576 ;  Doan  v.  Holly,  25  Mo.  357 ;  Marsh  v.  Richards,  29  Mo. 
99;  St.  Louis,  etc.,  Co.  v.  City  of  St.  Louis,  86  Mo.  495;  Christal 
V.  Craig,  80  Mo.  367;  Henderson  v.  Dickey,  50  Mo.  161;  Ken- 
drick  V.  R.  R.  Co.,  81  Mo.  521 ;  Linville  v.  Harrison,  30  Mo.  228 ; 
Jamison  v.  Copher,  35  Mo.  483 ;  Ederlin  v.  Judge,  36  Mo.  351 ; 
Southworth  Co.  v.  Lamb,  82  Mo.  242.  While  there  was  but  one 
injury,  and  there  could  be  but  one  recovery  for  it,  any  number 
of  negligent  acts  preceding  the  injury  and  leading  up  to  and 
contributing  to  it  might  properly  be  set  forth  in  the  same  count 
of  the  petition,  if  of  the  same  character.  An  action  for  damages 
at  common  law  for  negligence  cannot  be  joined  in  the  same 
count  with  one  for  statutory^"  negligence  for  the  very  obvious 
reason  that  they  could  have  no  possible  connection  with,  or  in 
any  way  be  dependent  upon,  each  other.  Kendrick  v.  Chicago 
&  Alton  R.  R.  Co.,  81  Mo.  521 ;  Harris  v.  Wabash  R.  R.  Co.,  51 
Mo.  App.  125.  Hill  V.  Mo.  Pac.  Ry.  Co.,  49  App.  520,  and  same 
case  in  121  Mo.  477,  26  S.  W.  576,  relied  upon  by  plaintiff,  does 
not  announce  a  contrary  rule.  Upon  the  other  hand,  the  acts 
of  negligence  preceding  the  injury  in  that  case  were  all  of  the 

10  Contra,  Payne   v.  Ry.,  201  N.       on  common  law  and  statutory  lia- 
Y.   436,    (1911)    (one    count    based       biUty  for  same  injury). 


Sec.  3.]  Joinder  of  Causes  of  Action.  429 

same  character,  and  naturally  led  up  to  and  contributed  to  the 
accident,  while  in  the  case  at  bar  they  were  independent  of,  and 
had  no  connection  with,  each  other.  Each  cause  of  action  was 
founded  on  a  different  right,  and  each  right  separate  from  the 
other,  because  not  derived  from  the  same  source  or  in  the  same 
manner.  As  the  accident  resulted  from  the  same  transaction,  the 
causes  of  action  could  well  be  joined  in  the  same  petition,  but 
in  separate  counts,  with  a  prayer  for  judgment  at  the  conclusion 
of  each  count.  The  court,  at  the  instance  of  plaintiff,  instructed 
the  jury  upon  both  causes  of  action,  and  authorized  a  recovery 
upon  proof  of  either  negligence  or  of  a  violation  of  the  ordi- 
nance, and  thus  recognized  the  petition  as  stating  two  different 
causes  of  action.  In  case  a  petition  improperly  joins  two  dif- 
ferent causes  of  action  in  the  same  count,  it  has  always  been 
ruled  by  this  court  that  the  remedy  is  by  timely  motion  to  re- 
quire the  plaintiff  to  elect  upon  which  count  he  will  proceed  to 
trial,  as  was  done  in  this  case.  Mooney  v.  Kennett,  19  Mo.  551, 
61  Am.  Dec.  576;  Otis  v.  Merchants'  Bank,  35  Mo.  128;  Kern 
v.  Pfaff,  44  Mo.  App.  32 ;  Liddell  v.  Fisher,  48  Mo.  App.  454 ; 
Christal  v.  Craig,  80  Mo.  367 ;  Childs  v.  R.  R.  Co.,  117  Mo.  414, 
23  S.  W.  373.  The  case  in  hand  is  clearly  distinguishable  from 
Bartley  v.  Trorlicht,  49  Mo.  App.  216,  and  that  class  of  cases, 
where  a  number  of  defects  in  machinery,  all  existing  at  the  time 
of  the  injury,  might  co-operate  with  each  other  in  producing  it ; 
and  under  such  circumstances  it  would  be  proper  to  unite  them, 
because  the  ultimate  effect  of  all  the  defects  produced  the  in- 
jury, and  because  capable  of  and  likely  to  co-operate  with 
each  other  in  the  result.  The  motions  should  have  been  sus- 
tained.   •    *    • 

Judgment  reversed. 


CHAPTER  IV. 
DEMURRERS. 

New  York  Code  of  Civil  Procedure. 

§  487.     The  only  pleading,  on  the  part  of  the  defendant,  is 
either  a  demurrer  or  an  answer. 

§  488.^     The  defendant  may  demur  to  the  coinplaint,  where 


1  Practically  all  of  the  codes  em- 
embody  the  grounds  of  demurrer 
found  in  the  New  York  Code,  but 
a  number  of  them  include  one  or 
more  additional  grounds,  such  as 
misjoinder  of  defendants,  lack  of 
certainty  in  the  complaint,  or  fail- 
ure to  show  that  the  action  was 
begun  within  the  time  limited  by 
statute,   etc. 

For  purposes  of  comparison,  see: 
Alaska,  Code,  1900,  §  58;  Ari- 
zona, K.  S.,  1913,  §  468;  Arkansas, 
Dig.  Stat.,  1921,  §  1189;  California, 
Code  Civ.  Prac,  1915,  §  430;  Con- 
necticut, G.  S.,  1918,  §  5631  (sub- 
stantially different  from  New  York 
Code)  Idaho,  Comp.  Stat.,  1919,  § 
6689;   Indiana,   Burn's   Ann.   Stat., 

1914,  §  344;  Iowa,  Comp.  Code, 
1919,  §  7208;  Kansas,  G.  S.,  1915, 
§  6984;  Kentucky,  Rev.  Code,  1900, 
§§  92,  93;  Minnesota,  G.  S.,  1913, 
§  7754;  Missouri,  E.  S.,  1919,  § 
1226;  Montana,  Eev.  Code,  1907, 
§  6534;  Nebraska,  Ann.  Stat.,  1911, 
§  1097;  Nevada,  Rev.  Laws,  1912, 
§    5040;    New   Mexico,   Ann.   Stat., 

1915,  §  4110;  New  York,  Civ.  Prac. 
Act,  1920,  §  277,  amended:  The 
demurrer  is   abolished.     An   objec- 


tion to  a  pleading  in  point  of  law 
may  be  taken  by  motion  for  judg- 
ment   as   the   rules   provide. 

North  Carolina,  Consol.  Stat., 
1919,  §  511;  North  Dakota,  Comp. 
Laws,  1913,  §  7442;  Ohio,  Gen. 
Code,  1921,  §  11309;  Oklahoma, 
Rev.  Laws,  1912,  §  4740;  Oregon, 
Laws,  1920,  §  68;  South  Carolina, 
Code,  1912,  §  194;  South  Dakota, 
Rev.  Code,  1919,  §  2348;  Utah, 
Comp.  Laws,  1917,  §  6568;  Wash- 
ington, Rem.  &  Bal.  Code,  1910,  § 
259;  Wisconsin,  Stat.,  1919,  §  2649; 
Wyoming,  Comp.  Stat.,  1920,  § 
5651;  U.  S.  Equity  Rules,  1912,  No. 
29:  Every  defense  in  point  of 
law  arising  upon  the  face  of  the 
bill,  whether  for  misjoinder,  non- 
joinder, or  insufficiency  of  fact  to 
constitute  a  valid  cause  of  action 
in  equity,  which  might  heretofore 
have  been  made  by  demurrer  or 
plea,  shall  be  made  by  motion  to 
dismiss  or  in  the  answer;  and 
every  such  point  of  law  going  to 
the  whole  or  a  material  part  of 
the  cause  or  causes  of  action, 
stated  in  the  bill  may  be  called 
up  and  disposed  of  before  final 
hearing    at    the    discretion    of    the 


(430) 


Sec.  1.]  Admission  by  Demurrer.  431 

one  or  more  of  the  following  objections  thereto  appear  upon  the 
face  thereof: 

1.  That  the  court  has  not  jurisdiction  of  the  person  of  the 

defendant. 

2.  That  the  court  has  not  jurisdiction  of  the  subject  of  the 

action. 

3.  That  the  plaintiff  has  not  legal  capacity  to  sue. 

4.  That  there  is  another  action  pending  between  the  same 
parties,  for  the  same  cause. 

5.  That  there  is  a  misjoinder  of  parties  plaintiff. 

6.  That  there  is  a  defect  of  parties,  plaintiff  or  defendant. 

7.  That  causes  of  action  have  been  improperly  united. 

8.  That  the  complaint  does  not  state  facts  sufficient  to  con- 
stitute a  cause  of  action. 

§  490.^*  The  demurrer  must  distinctly  specify  the  objections 
to  the  complaint;  othewise  it  may  be  disregarded.  An  objec- 
tion, taken  under  subdivision  first,  second,  fourth,  or  eighth,  of 
section  four  hundred  and  eighty-eight  of  this  act,  may  be  stated 
in  the  language  of  the  subdivision;  an  objection,  taken  under 
(dther  of  the  other  subdivisions,  must  point  out  specifically  the 
particular  defect  relied  upon. 

§  492.  The  defendant  may  demur  to  the  whole  complaint,  or 
to  one  or  more  separate  causes  of  action,  stated  therein.     In  the 

court.  Every  defense  heretofore  provided  in  this  section.  An  ob- 
presentable  by  plea  in  bar  or  abate-  jection  to  a  complaint,  or  to  a 
ment  shall  be  made  in  the  answer  separate  statement  therein  of  a 
and  may  be  separately  heard  and  cause  of  action,  or  to  a  counter- 
disposed  of  before  the  trial  of  the  claim,  that  it  does  not  state  facts 
principal  case  in  the  discretion  of  sufficient  to  constitute  a  cause  of 
the  court.  If  the  defendant  move  action,  or  that  the  court  has  not 
to  dismiss  the  bill  or  any  part  jurisdiction  of  the  subject  of  the 
thereof,  the  motion  may  be  set  action  or  counterclaim,  or  that  the 
down  for  hearing  by  either  party  court  has  not  jurisdiction  of  the 
upon  five  day's  notice,  and,  if  it  person  of  the  defendant,  or  that 
be  denied,  answer  shall  be  filed  another  action  is  pending  between 
within  five  days  thereafter  or  a  the  same  parties  for  the  same 
decree  pro  confesso  entered.  cause,  or  an  objection  to  a  defense 
2  An  objection  to  a  pleading  must  that  it  is  insufficient  in  law  upon 
be  distinctly  specified  in  the  notice  the  face  thereof,  may  be  so  stated 
of  motion.  An  objection  under  the  without  further  particulars.  N.  Y. 
last  section  but  one  must  point  out  Civ.  Prac.  Act,  1920,  §  280, 
specifically  the  particular  defect  (amended), 
relied    upon,    except    as    otherwise 


432  Demurrers.  [Chap.  IV. 

latter  case,  he  may  answer  the  causes  of  action  not  demurred  to. 

§  497.  Upon  the  decision  of  a  demurrer,  either  at  a  general 
or  special  term,  or  in  the  court  of  appeals,  the  court  may,  in  its 
discretion,  allow  the  party  in  fault  to  plead  anew  or  amend, 
upon  such  terms  as  are  just.  If  a  demurrer  to  a  complaint  is 
allowed,  because  two  or  more  causes  of  action  have  been  im- 
properly united,  the  court  may,  in  its  discretion,  and  upon  such 
terms  as  are  just,  direct  that  the  action  be  divided  into  as  many 
actions,  as  are  necessary  for  the  proper  determination  of  the 
causes  of  action  therein  stated. 

§  498.  Where  any  of  the  matters  enumerated  in  section  four 
hundred  and  eighty-eight  of  this  act  as  grounds  of  demurrer, 
do  not  appear  on  the  face  of  the  complaint,  the  objection  may 
be  taken  by  answer. 

§  499.^  If  such  an  objection  is  not  taken,  either  by  demurrer 
or  answer,  the  defendant  is  deemed  to  have  waived  it;  except 
the  objection  to  the  jurisdiction  of  the  court,  or  the  objection 
that  the  complaint  does  not  state  facts  sufficient  to  constitute  a 
cause  of  action. 


Section  1.    Admission  by  Demurrer. 

DAERAH  V.  LIGHTFOOT. 

Supreme  Court  of  Missouri,  1851.    15  Mo.  187. 
This  was  an  action  on  an  account  for  the  use  of  a  boat  and 

3  An  objection  on  either  of  the  (e)  that  there  is  a  defect  of  par- 
following  grounds,  appearing  on  ties,  plaintiff  or  defendant;  (f)  that 
the  face  of  a  pleading,  is  waived  causes  of  action  have  been  improp- 
unless  taken  by  motion:  erly  united. 

1.  As  to  the  complaint:  (a)  that  2.  As  to  a  counterclaim:  (a)  that 
the  court  has  not  jurisdiction  of  the  defendant  has  not  legal  capac- 
the  person  of  the  defendant  in  ity  to  recover  upon  the  same;  (b) 
cases  where  jurisdiction  may  be  that  another  action  is  pending  be- 
acquired  by  his  consent;  (b)  that  tween  the  same  parties  for  the 
the  plaintiff  has  not  legal  capacity  same  cause;  (c)  that  the  counter- 
to  sue;  (c)  that  another  action  is  claim  is  not  one  which  may  be 
pending  between  the  same  parties  properly  interposed  in  the  action, 
for  the  same  cause;  (d)  that  there  N.  Y.  Civ.  Prac.  Act.  1920,  §  278 
is  a  misjoinder  of  parties  plaintiff;  (amended). 


Sec.  1.]  Admission  by  Demurrer.  433 

other  articles  for  various  periods.  A  demurrer  to  the  petition 
(complaint)  was  overruled,  and  defendant  failing  to  answer, 
a  judgment  nil  dicit  was  entered  for  the  amount  of  tlie  account 
without  proof  of  any  of  the  items.  Defendant  appealed  from 
the  order  refusing  to  set  the  judgment  aside.* 

Ryland,  J.  The  only  point  necessary  for  us  to  notice,  is  the 
act  of 'the  court  below  in  giving  the  final  judgment. 

After  deciding  the  demurrer  in  favor  of  the  petitioners,  and 
giving  time  to  the  defendant  to  answer,  which  the  defendant 
neglected  to  do,  the  court  gave  judgment  for  the  petitioners  by 
nil  dicit,  and  assessed  the  damages  to  the  amount  of  the  balance 
of  the  account  due,  as  appears  by  the  same  in  the  petition,  and 
interest  thereon,  making  in  all  the  sum  of  $122.03,  without  any 
proof  of  the  items  of  the  account  claimed  in  the  petition. 

This  we  think  was  error.  The  court  after  the  failure  of  the 
defendant  to  answer,  very  properly  gave  the  judgment  by  de- 
fault or  nihil  dicit;  and  if  it  had  required  the  petitioners  to 
make  proof  of  their  demand,  and  on  proof  had  rendered  final 
judgment  for  the  amount  so  proved,  this  court  would  not  have 
interfered. 

We  see  no  force  in  the  appellant's  objection  about  the  neglect 
of  an  order  to  have  the  damages  enquired  into  and  assessed  at 
the  same  term ;  and  without  such  order,  the  enquiry  must  not  be 
made  until  at  the  next  term.  All  this  is  rendered  necessary  by 
the  provisions  of  the  act  of  1848  and  9,  commonly  called  the 
new  code,  the  provisions  of  which,  we  apply  to  the  proceedings 
in  this  case. 

We  do  not  consider  that  the  demurrer  admits  the  items  of  an 
account^  set  forth  in  the  petition,  so  as  to  do  away  with  the 
necessity  of  proof.  If  the  judgment  be  given  on  demurrer  to 
such  a  petition,  and  defendant  should  refuse  to  answer,  an  en- 
quiry of  damages  becomes  necessary,  and  this  enquiry  may  be 

4  Statement  condensed.  defendant    only    admits    something 

6  Buller,  J.  in  Green   v.  Hearne,  to   be   due,   and   as  the   demand   is 

3  Term.  Rep.  301,   (17S9):   "When  uncertain,  the  plaintiff  must  prove 

a  defendant  suffers  judgment  to  go  the  debt  before  the  jury.     But,  in 

by  default,  he  admits  the  cause  of  the  former,  as  the  bill  of  exchange 

action.    And  thus  far  an  action  on  is   set   out   on   the   record,   the   de- 

a  bill  of  exchange,   and  an  action  fendant   by   suffering  judgment   to 

for   money    had    and    received    are  go    by   default,   admits    that   he   is 

alike;  but  beyond  that,  there  is  no  liable  to  the  amount  of  it." 
similarity.     For,  in  the  latter,  the 


43-1 


Demurrers.  [Chap.  IV. 


had  before  the  court,  if  the  petitioners  waive  a  jury,  or  it  may 
be  before  a  jury.    See  code  of  practice,  Art.  XII.  §  2. 

We  reverse  the  judgment  of  the  court  below,  as  far  as  respects 
the  enquiry  of  damages  only,  and  we  require  the  court  to  take 
proof  of  the  petitioner's  accounts  before  a  jury,  unless  the  pe- 
titioners waive  a  jury,  in  which  event,  the  court  is,  itself,  to  take 
the  evidence  and  assess  the  petitioner's  damages  upon  the  judg- 
ment by  default,  which  remains  undisturbed. 

This  case  is,  therefore,  remanded  to  the  court  below  for  fur- 
ther proceedings  in  accordance  with  this  opinion,  the  other 
judges  concurring. 


GRIGGS  V.  CITY  OF  ST.  PAUL. 

Supreme  Court  of  Minnesota,  1864.    9  Minn.  246. 

(Reprinted  ante  p.  298.) 


COOK  V.  TALLMAN. 

Supreme  Court  of  Iowa,  1874.    40  la.  133. 

The  same  facts  are  involved  in  all  of  these  causes,  and  they 
are  submitted  upon  one  abstract.  The  petitions  allege  that  the 
defendant  prosecuted  certain  suits,  wherein  the  plaintiffs  in 
these  actions  were  defendants,  for  the  purpose  of  setting  aside 
plaintiff's  titles,  based  upon  tax  sales  and  deeds,  to  certain 
lands  which  were  claimed  by  defendant;  that  plaintiffs  were 
non-residents  of  the  State,  and  service  was  had  upon  them  by 
publication;  that  such  service  was  illegal,  and  not  suf&cient  to 
give  the  court  jurisdiction ;  and  that  judgment  by  default  in  the 
actions  were  rendered  against  the  plaintiffs.  The  relief  asked 
is  that  the  judgments  be  set  aside,  and  the  proper  plaintiffs  be 
allowed  to  appear  and  defend  in  each  suit.  A  demurrer  to  each 
petition  was  sustained,  and  plaintiffs  in  each  case  appealed. 
The  other  facts  of  the  case  necessary  to  an  understanding  of 
the  point  ruled,  appear  in  the  opinion. 


Sec.  1.]  Admission  by  Demurrer.  435 

Beck,  J.  *  *  *  The  law  in  force  at  the  time  provides  that 
"the  publication  must  be  made  by  publishing  the  notice  re- 
quired *  *  *  in  some  newspaper  published  at  least  weekly, 
and  printed  in  the  county  where  the  petition  is  filed,  and  if 
there  be  none  printed  in  such  county,  then  in  such  paper  printed 
at  the  next  nearest  county  of  this  state,  which  paper  shall  in 
either  case  be  determined  by  plaintiff's  attorney."  Acts  13th 
General  Assembly,  Chapter  142.     Code  §  2619.- 

It  may  be  admitted  that  the  newspaper  in  which  the  publica- 
tion may  be  made,  must  be  printed  in  the  county  where  the  suit 
is  brought,  and  if  there  be  none  such  then  the  notice  must  ap- 
pear in  a  newspaper  printed  in  the  next  nearest  county.     The 
petition  alleges  that  the  newspaper  in  which  the  publication  was 
made  was  printed  in  Webster  county,  and  that  no  newspaper 
was  printed  in  Pocahontas  county.    It  also  shows  that  the  notice 
was  published  in  the  newspaper  determined  by  plaintiff's  at- 
torney.   Now  the  question  to  be  decided  is  this :    Is  Webster  the 
next  nearest  county  as  contemplated  by  the  statute?    The  court 
will  take  judicial  notice  of  the  boundaries  of  counties,  and  their 
relative  location.     Webster  county  lies  adjacent  to  Pocahontas. 
Four  other  counties  also  have  common  boundaries  with  it,  and 
it  had  corners  in  common  with  two  others.     Of  these,  which,  in 
the  language  of  the  statute,  is  "the  next  nearest  county?"    The 
statute  makes  no  provision  as  to  the  town  in  which  the  paper  is 
published,  further  than  it  shall  be  "at  the  next  nearest  county. ' ' 
Five  counties  lie  equally  "near"  Pocahontas,  that  is,  they  have 
boundary  lines  in  common  with  it.     Suppose  in  each  of  these 
counties  newspapers  were  published,  how  should  the  question 
have  been  determined  as  to  the  one  in  which  the  publication 
should  have  been  made?     The  statute  provides  it  shall  be  de- 
termined by  plaintiff's  attorney.    It  is  evident  that  of  these  five 
counties,  each  being  adjacent  to  Pocahontas  county,  any  one 
may  be  considered  the  next  nearest,  if  so  determined  in  the  man- 
ner and  by  the  person  pointed  out  in  the  statute.    The  publica- 
tion, therefore,  of  the  notice  in  a  newspaper  printed  in  Webster 
county,  upon  the  determination  of  plaintiff's  attorney,  was  a 
strict  compliance  with  the  law. 

II.  But  the  petition  alleges  that  Humboldt  is  "the  next  near- 
est county."  This  contradicts  the  record  pleaded  by  plaintiffs, 
which  shows  that  Webster  county  was  so  determined  in  the 
manner  pointed  out  by  law  and  other  facts,  the  location  and 


436  Demurrers.  [Chap.  IY. 

boundaries  of  the  different  counties,  of  which  the  courts  will 
take  judicial  notice.  A  fact  which  is  judicially  known  to  the 
court  is  to  be  regarded  as  a  matter  of  law,  and  therefore  cannot 
be  pleaded.  A  contradiction  or  denial  of  such  a  fact  cannot  be 
well  pleaded,  and  is  not  admitted  by  a  demurrer.^  Rev.  §  2917. 
Code,  §  2712.  The  demurrer  therefore  did  not  admit  the  allega- 
tion of  the  petition  just  stated. 

Other  objections  to  the  ruling  of  the  court  upon  the  demurrer 
are  not  presented  in  the  argument  of  plaintiff's  counsel.  We 
are  required  to  regard  them  as  waived. 

The  judgment  in  each  cause  is 

Affirmed. 


scoFiELD  V.  Mcdowell. 

Supreme  Court  of  Iowa,  1877.    47  la.  129. 

This  is  an  action  to  quiet  the  title  and  recover  the  possession 
of  certain  lands,  which  the  plaintiffs  claim  under  tax  deeds 
executed  November  6th,  and  recorded  November  9th,  1872.  The 
defendant  by  answer  and  cross-bill  alleged  that  the  fee  simple 
title  is  in  her,  and  that  the  title  of  the  plaintiffs  is  void,  for  the 
following  reasons : 

1.  The  defendant  after  the  expiration  of  three  years  from 
the  date  of  the  sale,  but  before  the  execution  of  the  deed,  ten- 
dered the  full  amount  necessary  to  redeem  from  the  sale  to  the 

6  Marshall,  J.,  in  Walhams  Oif  may  reasonably  be  regarded  as 
Co.  V.  Tracy,  141  Wis.  150,  (1910):  mere  police  expenses,  then  the  al- 
*  *  *  True,  it  is  alleged  in  the  legation  to  the  contrary  cannot 
complaint  that  the  fees  are  ex-  change  the  aspect  of  the  matter 
orbitant;  but  the  question  on  that  and  make  it  one  to  be  settled  on 
subject  is  not  one  of  fact  to  be  evidence.  It  is  considered  that 
determined  by  evidence  and  taken  they  can  be  so  regarded.  They 
as  admitted  by  the  demurrer,  as  are  about  the  same  as  in  laws 
claimed  by  appellant,  merely  be-  generally  on  the  subject  through- 
cause  a  surplus  is  in  fact,  or  prob-  out  the  country,  and  in  no  case 
ably  will  be,  collected.  If  the  law,  have  similar  charges  been  held  ex- 
speaking  for  itself,  in  the  light  of  orbitant,  so  far  as  we  can  dis- 
common knowledge  and  adjudica-  cover"  •  *  *, 
tions,  shows  clearly  that  the  fees 


Sec.  1.]  Admission  by  Demurrer.  437 

county  auditor,  and  to  the  holders  of  the  certificates,  which  they 
refused  to  accept. 

2.  The  lands  were  sold  at  tax  sale  in  October,  1869,  without 
being  advertised  for  sale. 

The  plaintiff  demurred  to  the  answer  and  cross-bill,  upon  the 
ground  that  they  presented  no  defense  to  the  plaintiff's  action, 
and  did  not  entitle  the  defendant  to  relief.  The  demurrer  was 
sustained.  The  defendant  refusing  to  further  plead,  a  decree 
was  entered  for  plaintiffs.  At  the  April  terra,  1876,  an  opinion 
was  filed  reversing  the  decision  of  the  court  below.  Upon  plain- 
tiff's petition  a  rehearing  was  granted,  and  the  cause  is  again 
submitted  for  determination. 

Day,  Ch.  J.  I.  That  the  right  of  redemption  must  be  exer- 
cised within  three  years  from  the  date  of  sale  was  detcrmine(J 
by  this  court  in  Pearson  v.  Robinson,  44  Iowa  413. 

The  plaintiffs  claim  title  to  the  lands  under  two  tax  deeds 
executed  November  6,  1872,  and  duly  recorded.  Section  784  of 
the  Revision  provides  that  the  deed,  when  substantially  executed 
as  required  and  recorded  in  the  proper  record,  shall  be  conclu- 
sive evidence  "that  the  property  was  advertised  for  sale  in  the 
manner,  and  for  the  length  of  time,  required  by  law."  This 
provision  was  held  to  be  constitutional  in  Allen  v.  Armstrong, 
16  Iowa  508  (514)  ;  See,  also,  Madson  v.  Sexton,  37  Iowa  562. 

The  answer  and  cross-petition  admit  the  execution  of  the  tax 
deeds  under  which  the  plaintiffs  claim  the  land.  They  admit, 
also,  by  implication,  that  the  deeds,  in  form,  are  in  substantial 
compliance  w4th  the  law.  But  they  allege  that  the  lands  were 
sold  without  any  advertisement,  and  that  the  deeds  are,  in  con- 
sequence thereof,  void.  The  plaintiffs,  instead  of  taking  issue 
upon  this  allegation  of  the  answer  and  cross-petition,  demurred 
thereto.  It  is  claimed  the  effect  of  this  demurrer  is  to  admit 
the  truth  of  the  allegation;  that,  the  truth  of  the  allegation 
admitted,  the  answer  sets  up  a  good  defense,  and  the  cross-peti- 
tion a  good  ground  for  affirmative  relief ;  and  that  the  demurrer 
should  have  been  overruled. 

It  is  a  familiar  principle  of  pleading  that  a  demurrer  admits 
only  facts  which  are  well  pleaded.  The  answer  and  cross-peti- 
tion, as  we  have  seen,  admit  the  execution  of  the  tax  deeds  in 
question.  The  law  attaches  to  these  deeds  certain  properties  or 
qualities.  One  of  these  is  that  the  deeds  are  conclusive  e^ddence 
that  the  lands  were  duly  advertised  for  sale.    Whenever  the  fact 


438  Demurrers.  [Chap.  I\. 

that  a  tax  deed  has  been  duly  executed  is  established  by  the  pro- 
duction of  the  deed  in  evidence,  or  by  the  admissions  in  the 
pleadings,  the  law  raises  the  conclusive  presumption  that  the 
lands  described  in  the  deed  were  duly  advertised  for  sale.  Is 
it,  then,  competent  for  a  pleader  to  admit  the  execution  of  such 
deeds,  and  at  the  same  time  deny  the  legal  inference  which  the 
law  conclusively  raises?  It  seems  to  us  clear  that  it  is  not  com- 
petent so  to  plead.  If,  however,  such  a  pleading  is  interposed, 
does  a  demurrer  thereto  admit  the  truth  of  the  allegation  im- 
properly made?  Suppose  a  party  sued  upon  a  promissory  note 
should  admit  the  due  execution  of  the  note,  that  it  was  given 
upon  good  consideration,  that  it  is  the  property  of  plaintiff  and 
unpaid,  but  should  aver  at  the  same  time  that  he  owes  plaintiff 
nothing  thereon.  Would  a  demurrer  to  the  answer  admit  the 
truth  of  this  allegation ?  Manifestly  not.  In  Gould's  Pleadings, 
p.  470,  section  25,  it  is  said:  ''A  demurrer  though  general, 
never  confesses  an  allegation  which  it  appears  upon  the  face  of 
the  pleadings  that  the  pleader  is  estopped  to  make,  as  if,  having 
pleaded  or  confessed  a  record,  to  which  he  is  a  party,  he  after- 
wards makes  an  averment  contradicting  or  impugning  it." 

Suppose  the  plaintiffs,  instead  of  demurring,  had  gone  to  trial 
upon  the  pleadings.  The  defendant  then  would  not  have  been 
permitted  to  introduce  any  proof  that  the  lands  were  not  adver- 
tised. If,  because  of  the  law  and  the  conditions  of  the  pleadings, 
the  defendant  would  not  have  been  permitted  to  offer  any  proof 
of  this  allegation  upon  the  trial,  it  must  be  true  that  a  demurrer 
to  it  does  not  admit  its  truth. 

The  demurrer  was  properly  sustained. 

Affirmed. 


McKENZIE  v.  MATHEWS. 
Supreme  Court  of  Missouri,  1875.     59  Mo.  99. 

Napton,  Judge,  delivered  the  opinion  of  the  court. 

This  was  a  petition  for  an  injunction.  The  facts  stated  in  the 
petition  were,  that  the  petitioner  was  the  owner  of  a  certain 
tract  of  land  described  therein;  that  Mathews  &  Brumbaeh 
threatened  to  commit  waste  on  it,  by  cutting  down  and  hauling 


Sec.  1.]  Admission  by  Demurrer,  439 

away  timber  from  it — which  would  be  an  irreparable  loss  to 
said  land.  An  injunction  was  therefore  asked,  to  restrain  said 
defendants  from  cutting  any  timber  or  committing  any  waste  on 
said  land,  and  for  such  other  relief,  etc.  The  application  was 
made  to  the  Circuit  Judge,  at  chambers,  in  August,  1871,  and 
an  mjunetion  was  directed,  upon  bond  being  given  by  the  peti- 
tioner. The  bond  was  given  and  the  injunction  issued  August 
16th,  1871. 

At  the  May  term,  1872,  of  the  Circuit  Court,  a  demurrer  was 
filed  to  this  petition  on  the  ground  that  the  facts  stated  in  the 
petition  furnished  no  ground  for  the  relief  prayed,  inasmuch 
as  no  insolvency  was  alleged,  nor  was  it  averred  that  there  was 
not  an  ample  and  complete  remedy  at  law ;  nor  was  there  any  al- 
legation that  any  action  was  pending  for  the  possession  of  the 
land  upon  which  defendants  were  said  to  have  an  intention  of 
cutting  timber.  The  demurrer  was  sustained,  but  nothing  fur- 
ther appears  to  have  been  done  at  that  term. 

On  Dec.  10th,  1872,  the  defendants  filed  their  motion  to  dis- 
solve the  temporary  injunction,  and  for  an  assessment  of  dam- 
ages. This  motion  was  sustained  and,  neither  party  requiring  a 
jury,  the  court  proceeded  to  assess  the  damages  upon  the  testi- 
mony submitted. 

The  defendant,  Mathews,  on  this  inquiry,  testified  that  he  had 
a  contract  with  Brumback  to  deliver  to  him  $200  worth  of  lum- 
ber; that  he  had  cut  the  logs  from  which  the  lumber  was  to  be 
sawed,  and  as  he  could  not  use  them,  they  had  greatly  depre- 
ciated in  value,  and  his  loss  on  this  item  he  estimated  at  $180. 
His  expense  attending  court  amounted  to  $13.50.  He  was  also 
prevented  from  clearing  eight  or  nine  acres  of  land  that  he  in- 
tended to  clear,  and  also  from  making  rails  to  replace  a  fence 
that  had  been  washed  away  by  the  flood,  which  he  estimated  at 
$180.     His  lawyer's  fee  was  $75. 

The  plaintiff  objected  to  this  evidence  because  the  defendants 
admitted  by  their  demurrer,  that  the  facts  stated  in  the  petition 
were  true,  and  that  the  plaintiff  was  the  owner  of  the  land.  This 
objection  was  overruled,  and  the  plaintiff  excepted. 

The  witness  also  stated  that  he  was  in  possession  of  the  land 
and  bought  it  of  the  railroad  company.  To  this  evidence  objec- 
tion was  also  made  on  the  ground  that  the  defendants,  by  their 
demurrer,  admitted  the  ownership  of  the  land.    *     *    * 

The  plaintiff  asked  the  following  declarations  of  law :    ' '  That 


440  Demurrers.  [Chap.  IV. 

the  defendants  have  admitted  by  their  pleadings  that  the  lands 
mentioned  in  plaintiff's  petition  belonged  to  plaintiff  and  were 
the  property  of  the  plaintiff,  and  hence,  defendants  cannot  re- 
cover and  damages  by  reason  of  being  restrained  from  cutting 
timber  off  from  said  lands ;  2nd,  The  defendants  cannot  recover 
attorney 's  fees  for  defending  said  suit ;  3rd,  Defendants  cannot 
recover  any  damages  in  this  case  because  there  was  no  answer 
made  by  defendants  to  the  petition,  before  the  dissolution  of  the 
injunction  herein."     These  last  instructions  the  court  refused. 

The  judgment  of  the  court  on  the  subject  of  damages  was  in 
favor  of  the  defendants,  in  the  sum  of  $528. 

There  was  a  motion  to  set  aside  the  finding  and  judgment, 
which  was  overruled ;  exceptions  were  duly  taken  to  all  the  rul- 
ings of  the  court,  and  the  case  is  brought  here  by  appeal. 

The  judgment  of  the  court  on  the  demurrer  was  obviously 
right.  The  petition  was  substantially  defective  in  almost  all  re- 
spects. It  is  impossible  to  conjecture  from  its  terms  whether  the 
plaintiff  or  defendant  was  in  possession  of  the  land.  If  the 
plaintiff  was  in  possession,  then  it  is  not  shown  that  an  action 
of  trespass  would  not  have  attained  all  the  objects  desired. 
There  is  no  allegation  of  the  insolvency,  nor  any  sufficient  alle- 
gation of  irreparable  damages.  The  former  is  not  always  neces- 
sary, but  in  regard  to  the  latter,  a  general  averment  that 
damages  threatened  are  irreparable  is  insufficient.  It  must  be 
shown  how,  and  in  what  way,  and  for  what  reason,  the  threat- 
ened damages  are  irreparable.  What  damages  are  irreparable 
is  a  question  to  be  decided  by  the  court  from  the  facts  stated. 

If  we  chose  to  infer  from  the  petition  that  the  defendants  were 
in  possession,  then  it  is  a  mere  matter  of  conjecture  what  title 
they  claimed,  if  any;  whether  they  were  lessees  for  years,  or 
tenants  for  life,  or  holding  under  an  asserted  fee  simple  title. 
If  the  title  was  in  dispute  some  proceeding  on  the  part  of  the 
plaintiff  ought  to  have  been  stated,  to  which  the  injunction 
would  have  been  auxiliary. 

The  only  question  in  this  case  is  as  to  the  damages.  It  is  not 
perceived  why  Brumback  was  made  a  party  defendant.  The 
testimony  of  Mathews  that  he  was  prevented  from  clearing  seven 
or  eight  acres  of  land  during  the  pendency  of  the  injunction 
seems  to  be  a  consequential  damage  too  remote;  but  the  only 
objection  to  that  testimony  was,  that  the  demurrer  admitted  the 
title  of  plaintiff.    This  objection  was  overruled  by  the  court  a  ad 


Sec.  ].]  Admission  by  Demurrer.  441 

we  think  properly.  A  demurrer  admits  facts  well  pleaded,  but 
only  for  the  purpose  of  deciding  the  question  raised  by  it;  the 
statements  in  the  petition  demurred  to  are  no  evidence  on  the 
question  of  damages,  or  on  the  general  issue.  (Berne  v.  Phillips, 
10  Conn.  62.)     *    *    * 

The  question  in  regard  to  the  damages  was  one  for  the  jury,  or 
in  this  case  for  the  Circuit  Court,  to  whom  the  facts  were  sub- 
mitted. The  objections  to  the  items  offered  were  insufficient, 
and,  although  we  think,  in  regard  to  the  item  of  two  hundred 
dollars,  which  was  charged  for  being  prevented  from  clearing 
seven  or  eight  acres,  that  it  was  inadmissible  because  too  remote ; 
yet  as  the  only  objection  to  it  was,  that  the  demurrer  admitted 
the  title  of  plaintiff,  and  this  objection  was  not  a  valid  one,  we 
will  not  disturb  the  judgment. 

Judgment  affirmed. 


DODGE  V.  COLBY. 
Court  of  Appeals  of  New  York,  1888.     108  N.  Y.  435. 

The  complaint  herein  contained  three  counts.  The  first  two 
alleged  in  substance  that  plaintiff  was  the  owner  in  fee  of  cer- 
tain lands  situate  in  the  state  of  Georgia;  that  defendant  and 
his  agents  "caused  various  persons  to  cut  timber  and  take  tur- 
pentine, the  property  of  the  plaintiff,"  from  said  lands.    *    *    * 

The  third  count,  after  repeating  the  averments  in  the  other 
two  counts,  alleged  "that  the  defendant  and  his  said  agents 
acting  in  the  premises  by  his  authority,  without  reasonable  or 
probable  cause,  and  with  full  knowledge  that  neither  he  nor 
those  for  whom  the  plaintiff  alleges  that  he  is  acting,  owned  the 
said  lands  or  had  any  meritorious  claim  thereto  or  interest 
therein,  have  publicly  and  widely  circulated  both  in  the  state 
of  Georgia,  in  this  state,  in  the  state  of  Massachusetts,  and  in 
other  parts  of  the  United  States,  the  assertion  that  the  plaintiff 
was  not  the  owner  of  or  interested  in  the  said  lands. ' ' 

The  complaint,  after  specifying  various  occasions  where  de- 
fendant himself  had  made  such  assertions,  and  setting  forth 
the  same,  set  forth  various  articles  published  at  the  instigation 
and  by  the  procurement  of  the  defendant  in   different  news- 


29 


442  Demurrers.  [Chap.  IV. 

papers,  to  the  same  effect,  i.  e.,  that  plaintiff  had  no  title  to 
the  lands,  but  that  the  same  were  owned  by  defendant  and  his 
associates.  *  *  *  and  that  in  consequence  of  the  said  action 
of  the  defendant  and  of  his  said  agents  not  only  has  the  plaintiff 
been  unable  to  sell  such  lands,  timber  and  turpentine  to  such 
persons,  but  he  has  been  wholly  prevented  from  selling  the  same 
to  any  persons  whatsoever,  and  that  in  conscqumice  the  plain- 
tiff has  lost  large  sums  of  money  which  would  have  been  re- 
ceived by  him  upon  such  sales;  that  the  plaintiff  charges  that 
the  statements  and  assertions  hereinbefore  mentioned,  in  so  far 
as  they  rei^resent,  either  directly  or  indirectly,  and  in  whatever 
language,  that  the  plaintiff  was  not  the  owner  of  or  interested 
in  the  said  lands,  or  that  the  defendant,  and  those  for  whom  he 
alleges  that  he  is  acting,  did  own  the  same,  were  false  and  de- 
famatory and  were  made  and  caused  to  be  circulated  and  pub- 
lished by  the  defendant  and  by  his  agents,  maliciously  and 
with  the  intent  to  injure  the  plaintiff  and  his  title  to  the  said 
lands. ' ' 

The  substance  of  the  demurrer  is  set  forth  in  the  opinion.'' 
RuGER,  C.  J.  The  defendant  demurred  to  the  complaint  in 
this  action,  and  to  each  separate  cause  of  action  stated  therein, 
upon  three  grounds,  viz. :  First,  that  the  court  has  not  juris- 
diction of  the  subject  of  the  action;  second,  that  the  complaint 
does  not  state  facts  sufficient  to  constitute  a  cause  of  action ; 
third,  that  causes  of  action  have  been  improperly  united,  viz., 
a  cause  of  action  for  slander  of  title,  which  is  a  transitory  ac- 
tion, with  one  for  trespass  on  lands  without  the  state,  of  which 
the  court  has  no  jurisdiction.  The  special  term  overruled  tlie 
demurrer,  and  on  appeal  to  the  general  term  that  court  reversed 
the  order  of  the  special  term.  The  general  term  held  that  the 
first  and  second  counts  of  the  complaint  each  stated  a  cause  of 
action  arising  out  of  trespasses  upon  lands  situated  in  the  state 
of  Georgia,  and  that  in  respect  to  such  actions  the  courts  of 
this  state  had  no  jurisdiction,  and  therefore  sustained  the  de- 
murrer to  those  counts.    *     *     * 

We  are,  however,  unable  to  agree  with  the  general  term  in  the 
conclusion  reached  by  it  that  the  third  count  does  not  state  a 
good  cause  of  action.  We  are  inclined  to  think  that  this  result 
was  arrived  at  through  inadvertence  in  failing  to  observe  the 

7  statement   condensed   and   part  of  opinion  omitted. 


Sec.  1.]  Admission  by  Demurrer.  443 

allegation  in  the  count,  that  the  statements  alleged  to  be  slander- 
ous "were  false  and  defamatory,  and  were  made  and  caused  to 
be  circulated  and  published  by  the  defendant  and  his  agents, 
maliciously  and  with  the  intent  to  injure  the  said  plaintiff  and 
his  title  to  the  said  lands."  The  demurrer  concedes  the  truth  of 
this  allegation,  and  renders  it  improper  for  the  court  to  refer 
to  the  statements  so  alleged  to  be  false,  defamatory  and  mali- 
cious, as  the  foundation  of  a  claim  that  they  were  made  in  good 
faith  and  in  the  exercise  of  a  lawful  right  on  the  part  of  the 
defendant  to  assert  his  title  to  the  lands  referred  to.  The  state- 
ment in  the  count  alleged  to  have  been  made  by  the  defendant 
that  his  title  had  been  investigated  by  four  able  legal  gentlemen 
who  unanimously  concurred  in  pronouncing  the  plaintiff's  title 
bad,  was  precisely  one  of  the  statemeiits  which  the  complaint 
alleged  to  have  been  false,  defamatory,  and  malicious,^  and  the 
truth  of  which  characterization  was  admitted  by  the  demurrer. 
It  was  error,  therefore,  in  the  court  below  to  refer  to  this 
statement  as  proof  of  the  propriety  of  the  defendant's  claim  to 
be  the  owner  of  the  lands,  or  as  justifying,  in  any  degree  the 
alleged  slanderous  statements.  We  are  of  the  opinion  that  this 
count  of  the  complaint  substantially  complied  witli  the  require- 
ments of  the  rule  relating  to  the  statement  of  a  cause  of  action 
for  slander  upon  title. 

Our  conclusion,  therefore,  is  that  judgment  of  the  general 
term  should  be  affirmed,  except  in  so  far  as  it  relates  to  the  tliird 
count,  and  as  to  that  it  should  be  reversed,  and  that  of  the 
special  term  affirmed,  without  costs  to  either  party  upon  this 
appeal. 

Judgment  reversed. 


AMERICAN  TRADING  CO  v.  GOTTSTEIN. 

Supreme  Court  of  Iowa,  1904.     123  la.  267. 

Appeal  by  plaintiff  from  judgment  on  demurrer  to  its  com- 
plaint. 

8  See  Mitchell  v.  Jenkins,  5  Barn,      question  of  malice   is  one  of  fact 
&  Ad.  588,   (1833),  that  in  an  ac-       for  the  jury. 
tion  for  malicious  prosecution  the 


444  Demurrers.  [Chap.  IV. 

McClain,  J.  The  objection  raised  by  the  demurrer  to  the 
plaintiff's  recovery  on  the  Illinois  judgment  set  out  in  the  peti- 
tion is  that  the  Illinois  court  had  no  jurisdiction  of  the  defend- 
ant, and,  therefore,  the  judgment  rendered  is  void.  The  claim 
of  want  of  jurisdiction  is  predicated  upon  two  grounds:  First, 
that  in  its  bill  of  complaint  in  the  Illinois  court  the  complainant 
(plaintiff  in  this  action)  did  not  ask  relief  by  way  of  a  personal 
judgment  against  the  defendant;  and,  second,  that  after  ren- 
dering a  final  decree  in  the  action  which  did  not  include  any 
personal  judgment  against  the  defendant,  the  Illinois  court  pro- 
ceeded without  jurisdiction  to  render  a  subsequent  decree,  which 
is  the  one  relied  on  by  plaintiff,  in  which  it  is  adjudged  that  the 
complainant  recover  of  the  defandant  the  sum  of  $532.93,  for 
which  execution  shall  issue  as  upon  a  judgment  at  common  law. 
It  is  sufficiently  shown  by  the  allegations  of  the  complaint  that 
the  defendant  appeared  in  the  Illinois  court  so  as  to  confer 
upon  that  court  jurisdiction  to  render  a  personal  judgment,  pro- 
vided the  court  had  the  power  in  such  proceeding  and  at  the 
time  the  final  decree  was  rendered  to  enter  a  personal  judgment. 
In  the  complaint  filed  in  the  Illinois  court  relief  is  asked  by  way 
of  foreclosure  of  a  lien  against  certain  personal  property  alleged 
to  belong  to  the  defendant  for  certain  storage  and  handling 
charges  in  connection  with  such  property  shipped  by  defendant 
to  complainant  at  Chicago  for  sale,  with  an  additional  prayer 
for  ' '  such  other  and  further  relief  in  the  premises  as  equity  may 
require  and  as  to  the  court  may  seem  meet. ' '  The  objection  that 
this  complaint  did  not  give  the  Illinois  court  jurisdiction  to 
enter  a  personal  judgment  is  not  well  taken,  for  several  reasons. 
In  the  first  place,  the  decree  of  the  Illinois  court  having  juris- 
diction of  the  parties  is  conclusive  as  against  collateral  attack 
on  the  question  of  law  as  to  whether  the  complaint  was  such  as 
to  warrant  a  personal  judgment.  There  are,  no  doubt,  expres- 
sions in  text-books  and  opinions  to  the  effect  that  a  judgment 
for  relief,  not  asked  for  in  the  complaint,  is  void  for  want  of 
jurisdiction,  but,  as  far  as  any  authorities  to  this  effect  are 
cited  for  appellee,  they  relate  to  cases  where  the  question  was 
raised  by  way  of  appeal  or  other  method  of  direct  attack,  or 
where  the  judgment  was  by  default,  and  therefore  without 
jurisdiction,  except  in  so  far  as  the  defendant  was  advised  by 
the  notice  of  summons  and  the  complaint  or  other  pleading  filed 
that  judgment  might  be  rendered  against  him.     It  is  not  neces- 


Sec.  1.]  Admission  by  Demurrer.  445 

sary  now  to  discuss  the  authorities  on  this  subject,  as  our  con- 
clusion is  sufficiently  supported  by  other  considerations  herein- 
after stated. 

It  seems  to  be  well  settled  under  the  authorities  that  a  prayer 
for  general  relief  in  a  complaint  in  equity  will  sustain  a  per- 
sonal judgment.  Her  v.  Griswold,  83  Iowa  442,  49  N.  W.  1023 ; 
Thomas  v.  Farley  Mfg.  Co.,  76  Iowa  735,  39  N.  W.  874.  Thus, 
in  Cushman  v.  Bonfield,  139  111.  219,  28  N.  E.  937,  it  is  held  that 
a  bill  for  the  specific  enforcement  of  a  contract,  which  also 
contains  a  prayer  for  general  relief,  will  support  a  money  de- 
cree, although  the  specific  relief  asked  cannot  be  given.  And  to 
the  same  effect  are  Gibbs  v.  Davies,  168  111.  205,  48  N.  E.  120, 
and  Penn  v.  Folger,  182  111.  76,  55  N.  E.  192.  We  think  there 
can  be  no  doubt  of  the  power  of  the  Illinois  court,  as  a  general 
principle  of  equity  practice,  to  enter,  as  it  did,  personal  judg- 
ment for  the  balance  of  the  indebtedness  of  defendant  to  the 
complainant  after  the  application  in  discharge  of  complainant's 
lien  of  the  amount  realized  by  judicial  sale  of  the  property  sub- 
ject to  the  lien.  But,  if  there  could  be  any  doubt  of  the  suffi- 
ciency of  the  complaint  to  sustain  the  decree  for  a  money  judg- 
ment under  the  general  rules  of  procedure  recognized  in  this 
state,  it  is  removed,  so  far  as  this  case  is  concerned,  by  plaintiff's 
allegation  in  an  amendment  to  his  petition  that  hj  the  general 
usage  and  practice  of  courts  of  equity  in  the  state  of  Illinois  and 
the  decisions  of  the  Supreme  Court  of  said  state  a  court  of 
chancery  of  that  state  has  jurisdiction  under  such  prayer  for 
general  relief  to  enter  a  personal  judgment  when  the  same  is 
consistent  with  the  allegations  of  fact  contained  in  the  bill,  and 
that  the  decree  of  the  Illinois  court  was  rendered  in  accordance 
with  such  usage  and  practice.  This  allegation  of  fact  as  to  the 
law^  of  Illinois  is  confessed  by  the  demurrer,  and  we  are  bound, 
therefore,  to  assume,  for  the  purpose  of  this  case,  as  it  is  now 
before  us,  that  the  personal  judgment  was  sufficiently  warranted 
by  the  allegations  of  the  bill  of  complaint.    *    *    * 

Judgment  reversed. 

9  When  a  pleading  sets  out  the  pleader  is  not  admitted  by  demur- 
terms  of  a  foreign  statute,  the  eon-  rer.  Finney  v.  Guy,  189  U.  S.  335, 
Btruetiion    placed    upon    it    by    the       (1903). 


446  Demurrers.  [Chap.  IV. 

Section  2.     Grounds  of  Demurrer. 

HAYDEN  V.  ANDERSON. 

Supreme  Court  of  Iowa,  1864.     17  la.  158. 

Action  on  a  replevin  bond  in  which  the  breach  assigned  was 
the  failure  to  comply  with  the  judgment  for  the  return  of  the 
property. 

The  defendant's  answer  set  up  amongst  other  things  that 
the  property  had  never  been  taken  from  the  plaintiff  or  deliv- 
ered to  the  defendant  under  the  writ  of  replevin. 

To  this  answer  the  plaintiff  filed  his  demurrer,  drawn  with 
evident  care,  and  at  great  length. 

I.  To  so  much  of  the  answer  as  averred  that  the  property 
was  never  taken  from  plaintiff,  and  never  came  to  posscssio]i 
of  defendant.  Because,  First,  That  it  does  not  appear  that  the 
replevin  suit  mentioned  in  the  answer  is  the  same  suit,  in  which 
the  bond  sued  on  was  given.  Second,  The  identity  of  the  prop- 
erty is  not  shown.  Third,  It  is  incompetent  to  go  behind  the 
judgment  to  show  that  the  property  was  not  taken.  Fourth, 
The  judgment  estops  the  defendant  from  saying  he  did  not 
have  possession  of  the  property. 

II.  To  so  much  of  the  answer  as  avers  ownership  in  Higgins 
— for  the  same  reason  in  substance  as  above.     *     *     * 

This  demurrer  was  overruled  by  the  court  below,  to  which 
the  plaintiff  then  excepted,  and  now  appeals.^ 

Cole,  J. — A  demurrer  is  proper  where  a  pleading  appears  on 
its  face  to  be  defective  either  in  substance  or  form;  it  is  a 
declaration  that  the  party  demurring,  will  go  no  further,  be- 
cause the  other  has  not  shown  sufficient  matter  against  him  to 
require  an  answer:  1  Chitty  on  Plead.  661.  A  demurrer  ad- 
mits the  facts  pleaded,  but  controverts  their  legal  sufficiency. 
A  demurrer,  then,  can  only  be  properly  interposed,  where  the 
party  controverts  the  legal  sufficiency  of  the  matter  stated  in 
the  entire  count  or  petition.  It  is  not  competent  to  assail  a 
clause,  or  a  sentence,  or  several  clauses  or  senteiices,  in  a  count 
or  petition  by  demurrer.  A  demurrer  is  not  a  pruning  hook, 
with  which  to  rid  a  pleading  of  foreign  or  improper  matter;  nor 

1  Statement  condensed  and  part  of  the  opinion  omitted. 


Sec.  2.]  Grounds  for  Demurrer.  447 

is  it  a  sword,  with  which  to  attack  and  cut  off  redundant  or  ira- 
pertinent  averments  in  a  pleading.  If  a  count  in  a  pleading 
contain  sufficient  statements  to  constitute  a  cause  of  action  or 
defense,  it  is  not  vulnerable  to  a  demurrer,  although  it  may 
also  contain  very  much  of  foreign,  improper,  redundant,  im- 
pertinent or  scandalous  matter.  Nor  can  such  matter  be 
reached  by  demurrer;  and,  therefore,  a  so-called  demurrer  "to 
all  that  part,"  or  "to  as  much  as  sets  up,"  &c.,  in  a  certain 
count,  does  not  rise  to  the  dignity  of  a  demurrer,  and  is  not 
entitled  to  its  name,  and  whenever  sufficient  matter  is  stated  in 
such  count  to  constitute  a  cause  of  action  or  defense,  such 
so-called  demurrer  should  be  overruled. 

Where  matter  which  should  properly  be  stated  in  different 
counts,  is  all  stated  in  one  count,  it  may,  on  motion,  be  separate 
(Rev.  §  2903),  but  cannot  be  reached  by  demurrer.  Swords  v. 
Russ,  13  Iowa  603.  Where  matter  is  redundant  or  irrelevant, 
it  may  be  struck  out  on  motion  (Rev.  §  2946),  but  redundance 
cannot  be  corrected  by  demurrer.  Davenport  Gas  Light  and 
Coke  Company  v.  The  City  of  Davenport,  15  Iowa  7.  Where  a 
whole  pleading  is  impertinent  or  immaterial,  it  may  be  struck 
from  the  files.  Man  v.  Howe  et  al.,  9  Iowa  546 ;  Keeny  v.  Lyon, 
10  Iowa  546.  And,  where  statements  are  not  sufficiently  full 
or  specific,  the  defect  cannot  be  reached  by  demurrer.  Bying- 
ton  V.  AVoods  et  al.,  13  Iowa  17.  But  it  must  be  by  motion. 
Rev.  §§  2918,  2948.  The  demurrer  in  this  ease  is  not  specifically 
to  any  one  count  of  the  answer,  nor  to  the  answer  as  a  whole, 
but  the  several  grounds  of  demurrer  are  set  out  as  applicable 
"to  all  that  part  of  said  answer  in  which  it  is  alleged,"  &c. 
This  manner  or  form  of  demurrer,  when  applied  to  a  part  only 
of  a  count  or  pleading,  is  insufficient  or  bad;  but  in  this  case, 
the  several  parts  of  the  demurrer,  when  taken  together  cover 
the  entire  answer,  and  it  will,  therefore,  be  regarded  and 
treated  as  a  demurrer  to  the  answer.  We  are  the  more  willing 
to  extend  this  generous,  and  almost  unwarrantable  liberality 
of  construction  to  tlie  demurrer  in  this  case,  for  the  reason  that 
it  was  regarded  and  treated  as  a  demurrer  by  the  court  below, 
as  well  as  by  counsel  in  this  court.     *     *     * 

Judgment  reversed. 


448 


Demurrers. 
ARTHUR  V.  RICHARDS. 


[Chap.  IV. 


Supreme   Court  of  Missouri,  1871.     48  Mo.   298. 

Currier,  Judge,  delivered  the  opinion  of  the  court. 

The  court  sustained  a  demurrer  to  the  petition  and  dismissed 
the  suit.  The  judgment  of  dismissal  was  informal,  but  it  was 
final  and  fatal  to  the  plaintiff's  action.  The  dismissal  termi- 
nated the  suit  in  the  circuit  court,  and  the  plaintiff  was  com- 
pelled either  to  submit  to  the  consequences  or  bring  the  cause 
here. 

The  defendant  demurred  upon  the  ground  that  another  suit 
was  then  pending  between  the  same  parties  and  for  the  same 
action.  It  is  not  pretended  that  the  petition  shows  any  such 
fact.  The  demurrer  should,  therefore,  have  been  overruled.* 
The  statute  is  clear  and  express  on  this  point.  (Gen.  Stat.  1865, 
p.  658,  Sec.  6.) 

Judgment  reversed. 


2  Pearson,    C.   J.,   iu   Von   Glalin 

V.  Derossett,  76  N.  C.  292,  (1877): 
«      *      * 

"The  second  ground  of  demur- 
rer is  the  subject  of  another  ob- 
jection. It  is  "a  speaking  demur- 
rer," as  styled  by  the  books.  That 
is,  in  order  to  sustain  itself,  the 
aid  of  a  fact  not  appearing  upon 
the  complaint  is  invoked,  to-wit: 
the  allegation  that  at  the  expira- 
tion of  the  charter,  the  Bank  held 
a  fund  which  should  first  be  ap- 
plied to  the  satisfaction  of  the 
debts  of  the  plaintiffs.  Whether 
there  be  any  fund  left  on  hand 
at  the  expiration  of  the  charter 
of  the  bank  is  a  question  of  fact 
that  cannot  be  inquired  into  upon 


demurrer,  which  raises  only  an  is- 
sue of  law  in  regard  to  the  cause 
of  action  set  forth  in  the  com- 
plaint."    *     »     * 

For  the  same  reason  it  is  diffi- 
cult to  conceive  of  a  case  where  a 
demurrer  could  be  based  on  the 
first  subdivision  of  the  statute, 
that  the  court  has  not  jurisdiction 
of  the  person  of  the  defendant, 
except  possibly  in  an  action  in 
some  court  of  special  and  limited 
jurisdiction,  since  ordinarily  juris- 
diction of  the  person  is  not  a  mat- 
ter to  be  alleged  in  the  complaint, 
but  is  obtained  by  service  of  pro- 
cess or  the  voluntary  appearance 
of  the  defendant.  Ed. 


Sec.  2.]  Grounds  for  Demurrer.  449 

BASS  V.  COMSTOCK. 

Court  of  Appeals  of  New  York,  186S.     38  N.  Y.  21. 

Mason,  J.  The  demurrer  in  this  case  was  properly  stricken 
out  and  judgment  given  for  the  plaintiffs.  There  is  no  mis- 
joinder of  causes  of  action.  There  are  two  causes  of  action  upon 
two  promissory  notes  well  stated  in  the  complaint,  but  the 
accusation  against  the  complaint,  as  I  understand  it,  is,  that  the 
causes  of  action  are  not  separately  stated,  as  required  by  section 
167  of  the  Code.  This  section  does  declare  that  the  causes  of 
action  must  be  separately  stated,  but  the  better  opinion  seems 
to  be  that  such  causes  of  action  are  not  improperly  united,  sim- 
ply because  they  are  not  separately  stated  by  the  pleader.  (Dor- 
man  V.  Kellam,  14  How.  Pr.  184 ;  1  N.  Y.  Pr.  367 ;  Gooding  v. 
McAlister,  9  How.  Pr.  123 ;  Robinson  v.  Judd,  9  How.  378 ;  Peck- 
ham  V.  Smith,  9  How.  Pr.  436.)  These  cases,  and  others  wliieh 
might  be  referred  to,  hold  that  a  demurrer  does  not  lie  to  a 
complaint  for  not  separately  stating  two  or  more  causes  of  ac- 
tion, they  being  such  as  might  be  properly  united  in  one  com- 
plaint, if  properly  and  separately  stated,  but  that  the  remedy 
of  the  defendant  is  by  motion.  There  are  cases  which  hold  that 
a  demurrer  for  such  a  defect  in  the  complaint  will  lie  and  is  the 
proper  remedy.  (8  How.  177;  9  id.  198;  4  id.  226,  228;  5  id. 
171;  11  id.  27.)  These  cases  hold  that  several  causes  of  action 
are  improperly  united  where  they  are  not  separately  stated,  as 
required  by  section  167  of  the  Code.  The  decided  weight  of 
authority  in  the  Supreme  Court,  however,  is  the  other  waj^  and 
the  better  reason  is,  that,  when  the  causes  of.  action  are  such  as 
may  be  united  in  the  complaint,  a  demurrer  will  not  lie  for  such 
a  cause. 

It  must  be  borne  in  mind  that  section  167  allows  the  causes 
of  action  upon  these  two  notes  to  be  joined  in  the  same  com- 
plaint, but  it  declares  that  they  must  be  separately  stated.  Tf  we 
turn  to  section  144,  it  will  be  seen  that  a  demurrer  can  only  be 
interposed  for  the  causes  stated  in  that  section,  none  of  which 
touch  this  case,  unless  it  is  the  fifth  sub.  of  that  section,  and 
which  is,  that  several  causes  of  action  have  been  improperly 
united. 

That  is  improperly  united  in  the  complaint.  This  section  144 
states,  that  the  defendant  may  demur  to  the  complaint,  when  it 


450  Demurrers.  [Chap.  IV. 

shall  appear,  upon  the  face  thereof,  that  several  causes  of  action 
have  been  improperly  united.  Now,  section  167  declares,  that 
these  causes  of  action  may  properly  be  united  in  the  same  com- 
plaint, and  the  injunction  imposed  upon  the  pleader,  that  such 
causes  of  action  shall  be  separately  stated,  is  a  rule  of  pleading, 
and  which  has  been  violated  when  this  is  not  done,  but  I  am  not 
able  to  perceive  how  it  can  be  said  that  the  causes  of  action  have 
been  improperly  united  in  the  complaint. 

Now,  section  144  does  not  say  that  a  demurrer  may  be  inter- 
posed to  the  complaint  where  several  causes  of  action,  which  may 
be  properly  joined  under  section  167,  because  they  are  united  in 
one  count,  and  not  separately  stated.  The  demurrer  is  not  given 
for  uniting  in  count  separate  causes  of  action,  but  for  uniting  in 
the  complaint  causes  of  action,  which  it  is  not  lawful,  under 
section  167,  to  unite  in  the  same  complaint.  It  is  true,  the  plead- 
er, in  this  case,  has  violated  a  rule  of  pleading  enjoined  by  this 
same  section.  It  docs  not  follow,  however,  that  this  demurrer 
can  be  maintained.  There  are  other  rules  of  pleading  prescribed 
by  the  Code,  the  violation  of  which  will  not  give  the  defendant 
his  demurrer. 

This  view  is  greatly  strengthened  by  the  last  paragraph  of 
section  172  of  the  Code,  which  makes  it  the  duty  of  the  court, 
where  a  demurrer  to  the  complaint  shall  be  sustained  because  of 
the  improper  misjoinder  of  causes  of  action,  to  order  them  to  be 
separated,  and  that  they  be  proceeded  with  as  separate  actions.^ 

Judgment  affirmed. 

3  But  tlie  fact  that  the  different  separate    statement,    a    motion    to 

causes  of  action  are  not  separately  require    that    to    be    done    would 

stated  will  not  deprive  a  defendant  seem  to  be  appropriate,  rather  than 

of    his    right    to    demur    for    mis-  a  motion  to  require  the  plaintiff  to 

joinder.      Wiles    v.    Suydam,    ante,  elect,    which    appears    to    be    sane- 

p.  390;  Faesi  v.  Goetz,  15  Wis.  231,  tioned  in  some   of  the  states,  Mc- 

ante,  p.  420.  Hugh  v.  St.  Louis  Transit  Co.,  190 

Where,  as  in  the  principal  case,  Mo.   85,   ante,  p.   426. 
the   only  objection  is  the  lack  of 


Sec.  2.]  Grounds  for  Demurrer.  451 

HILES  V.  JOHNSON. 

Supreme  Court  of  Wisconsin,  1886.     67  Wis.  517. 

Orton,  J.  These  two  cases  are  substantially  alike  in  respect 
to  the  questions  presented  on  appeal.  The  complaints  are,  first, 
in  ejectment,  with  the  usual  averments,  as  against  defendants 
claiming  title  to  the  premises,  and  it  is  averred  "that  the  de- 
fendants claim  title  to  said  lands,  and  an  interest  therein  and 
claim  to  be  the  owners  thereof,  and  the  whole  thereof;  but  this 
plaintiff  insists  that  said  claims  of  the  defendants  are  unlawful, 
and  their  pretended  title  thereto  is  void,  and  ought  to  be  can- 
celled of  record."  Following  the  usual  prayer  for  judgment  in 
ejectment  is  the  following:  "And  that  said  defendants'  title 
thereto  be  adjudged  void,  and  canceled  of  record,  and  that  this 
plaintiff  have  such  further  and  other  relief  as  shall  be  just  and 
equitable. ' '  In  the  second  case  there  is  a  claim  for  damages  for 
waste  under  section  82,  Rev.  St.,  and  prayer  for  injunction 
against  waste  pendente  lite,  and  there  is  a  general  prayer  for 
relief,  but  no  special  prayer  for  the  cancellation  of  the  defend- 
ants' title.  These  complaints  were  demurred  to  on  the  ground 
that  several  causes  of  action  have  been  improperly  united  in  said 
complaints.  The  demurrers  were  overruled,  and  the  defendants 
have  appealed.  The  contention  of  the  learned  counsel  of  the 
appellants  is  that,  united  with  the  proper  averments  in  com- 
plaints in  ejectment,  are  the  proper  averments  and  prayer  to 
quiet  title,  or  to  remove  a  cloud  from  the  title  of  the  plaintiff. 

It  has  long  been  settled  by  this  court  that,  in  order  to  make 
a  complaint  multifarious,  the  count  which  is  claimed  to  be  im- 
properly joined  must  set  out  a  good  cause  of  action.*  Bassett  v. 
Warner,  23  Wis.  673 ;  Truesdel  v.  Rhodes,  26  Wis.  215 ;  Willard 
V.  Reas,  Id.  540;  Lee  v.  Simpson,  29  Wis.  333.  The  case  of 
Leidersdorf  v.  Second  Ward  Bank,  50  Wis.  406,  S.  C.  7  N.  W. 
R.  306,  is  not  in  conflict  with  the  above  cases.  It  is  held  in  that 
case  only  that  if  the  complaint  stated  any  cause  of  action,  it 
stated  two  causes,  and  was  therefore  demurrable.     It  was  not 

4  But  see  Jacobus  v.  Colgate,  217  tion,  over  which  the  court  had  no 

N.  Y.  235,  (1916),  sustaining  a  de-  jurisdiction,   and    which    the    court 

murrer  for  misjoinder  in  uniting  a  in    effect   held   to   be    no    cause   of 

good  cause  of  action  with  one  for  action  at  all. 
injury  to  land  beyond  the  jurisdic- 


452  Demurrers.  [Chap.  IV. 

decided  whether  the  complaint  stated  any  good  cause  of  action. 
Does  either  of  these  complaints  state  any  good  cause  of 
action,  except  in  ejectment?  An  improper  demand  for  relief  is 
not  ground  for  demurrer.  State  v.  Smith,  14  Wis.  564.  In 
Tewksbury  v.  Schulenberg,  41  Wis.  584,  the  complaint  set  out  a 
good  cause  of  action  to  recover  tolls  for  passing  the  defendant's 
logs  over  the  plaintiff's  dam  and  slides,  and  demands  judgment 
in  money,  and  also  that  it  be  declared  a  lien  on  the  logs.  On 
demurrer  to  the  complaint,  it  was  held  that  a  demand  for  a 
greater  or  different  relief  than  the  averments  of  the  complaint 
show  the  plaintiff  entitled  to  is  not  one  of  the  grounds  of  de- 
murrer under  our  statutes.  It  follows  that  the  mere  prayer  for 
judgment  for  cancellation  of  any  title  the  defendants  may  have 
in  the  premises  is  not  sufficient  to  make  a  cause  of  action,  or 
make  the  complaint  demurrable.  To  constitute  a  complaint, 
there  must  be  "a  plain  and  concise  statement  of  the  facts  con- 
stituting eacli  cause  of  action."  Section  2646,  subd.  2  Rev.  St. 
These  complaints  do  not  state  a  single  fact  which  would  entitle 
the  plaintiff  to  such  relief.  (1)  The  plaintiff  is  not  in  posses- 
sion. (2)  No  specific  claim  of  the  defendants  is  stated,,  and 
there  is  no  averment  that  they  ever  relied  upon  any  specific 
claim  or  title.  No  facts  are  stated  to  show  that  there  is  any 
cloud  on  the  plaintiff's  title  to  be  removed.  In  short,  there  are 
no  averments  whatever  which  constitute  any  second  cause  of 
action  upon  which  the  prayer  for  relief,  beyond  that  in  eject- 
ment, could  be  based.  I  do  not  understand  that  the  learned 
counsel  of  the  appellants  seriously  contend  tliat  there  are  any 
such  averments,  but  reliance  is  placed  on  the  law  that  none  are 
necessary,  and  that  the  prayer  is  sufficient.  The  demurrers 
were  properly  overruled. 

Order  affirmed. 


PORTER  V.  FLETCHER. 

Supreme  Court  of  Minnesota,  1879.     25  Minn.  493. 

(Reprinted  ante,  p.  183.) 


Sec.  2.]  Grounds  for  Demurrer.  453 

TENNANT  v.  PHISTER. 

Supreme  Court  of  California,  1873.     45  Cal.  270. 

By  the  Court:  The  defendants  demurred  to  the  complaint 
for  an  alleged  misjoinder  of  parties  plaintiff;  and  the  demurrer 
havinf;  been  overruled,  and  an  order  to  that  effect  entered  of 
record,  the}'  subsequently  filed  an  answer,  denying  the  allegations 
of  the  complaint,  and  setting  up  matter  in  bar  of  the  action. 
The  action  afterwards  came  on  to  be  tried  upon  the  issues  joined 
by  the  answer,  whereupon  the  defendants  objected  to  the  evi- 
dence offered  by  the  plaintiff,  the  ground  of  the  objection  being 
that  which  had  been  taken  bj^  the  demurrer,  to  wit :  the  alleged 
misjoinder  of  parties  plaintiff.  This  objection  taken  at  the  trial 
was  thereupon  sustained  by  the  Court,  and  the  action  was  dis- 
missed on  that  ground,  the  plaintiffs  declining  to  amend  their 
complaint. 

We  are  of  opinion  that  the  Court  below  erred  in  the  ruling 
made  at  the  trial.  The  answer  did  not  set  up  a  misjoinder  of 
plaintiffs,  nor  could  it  have  properly  done  so,  because  the 
objection,  if  it  were  one,  appeared  upon  the  face^  of  the  com- 
plaint itself.  The  demurrer  upon  that  ground  had  been  over- 
ruled, and  at  the  trial  no  objection  against  the  complaint  was 
open  to  inquiry,  except  the  want  of  jurisdiction,  or  that  the 
facts  stated  in  the  complaint  did  not  constitute  a  cause  of  ac- 
tion. The  demurrer  for  alleged  misjoinder  having  been  pre- 
viously overruled,  the  case  stood  thereafter  in  the  Court  below 
as  though  no  such  demurrer  had  been  interposed,  unless,  in- 
deed, the  Court  should  first  set  aside  the  order  overruling  it,  and 
permit  the  demurrer  to  be  again  presented  for  consideration. 

It  would  be  productive  of  much  confusion  and  probable  sur- 
prise to  parties  if  a  demurrer  for  misjoinder  of  parties,  or  the 
like,  once  passed  upon  may  be  afterwards  in  effect  renewed  at 
the  trial  by  the  mere  repetition  of  the  same  objections  which  had 

6  So  where  a  defect  of  parties  taken  by  answer,  Depuy  v.  Strong, 
appears  on  the  face  of  the  com-  3  Keys.,  603,  (1867),  ante,  p.  180. 
plaint,    the    objection    cannot    be 


454  Demurrers.  [Chap.  IV. 

been  already  definitely  determined  in  disposing  of  the  demurrer. 
Judgment  reversed  and  cause  remanded.^ 


DODGE  V.  COLBY."' 

Court  of  Appeals  of  New  York,  1888.     108  N.  Y.  445. 

RuGER,  C.  J. :  *  *  *  We  concur  in  the  conclusions  reached 
by  that  court  in  respect  to  this  portion  of  the  complaint.  The 
counts  referred  to,  we  think,  under  the  liberal  system  estab- 
lished by  the  code,  each  clearly  stated  a  good  cause  of  action  in 
trespass  quare  clausum  f regit,  and  entitled  tlie  plaintiff,  if  sus- 
tained, to  recover  for  all  damages  accruing  to  him  from  the  acts 
described  therein.  It  constitutes  no  answer  to  this  proposition 
that  the  plaintiff  might  have  recovered,  upon  the  facts  stated, 
some  of  the  damages  alleged  to  have  been  sustained  by  him,  in 
an  action  of  trover,  so  long  as  the  gravamen  of  the  charge  was 
the  unlawful  intrusion  upon  his  real  estate.  The  cutting  and 
tapping  of  trees  constituted  the  real  basis  of  the  damages 
claimed.  Wliile  the  counts  referred  to,  each  allege  the  value  of 
tlie  timber  and  turpentine  claimed  to  have  been  carried  away 
from  the  premises  of  the  plaintiff,  this  is  merely  incidental  to 
the  trespass  alleged,  and  the  complaint  concludes  with  a  general 
prayer  for  judgment  which  would  cover  the  damages  arising 
from  the  alleged  unlawful  entry  upon  the  plaintiff's  lands  and 
the  trespasses  committed  thereon,  as  well  as  the  incidental  dam- 
ages arising  from  the  conversion  of  his  property.  The  doctrine 
that  the  courts  of  this  state  have  no  jurisdiction^  of  actions  for 
trespasses  upon  lands  situated  in  other  states  is  too  well  settled 
to  admit  of  discussion  or  dispute.  Telegraph  Co.  v.  Middleton, 
80  N.  Y.  408 ;  Cragin  v.  Lovell,  88  N.  Y.  258.  The  claim  urged 
by  the  plaintiff  that  if  not  permitted  to  maintain  this  action  he 
is  without  remedy  for  a  most  serious  injury,  is  quite  groundless, 

6  After   the   case   was   remanded,  see  Dodge  v.  Colby,  ante,  p.  441. 
the   answer  was  withdrawn   and   a  8  For  the  recent  statute  in  New 
demurrer  for  misjoinder  finally  sus-  York    making    such   actions   transi- 
tained,  Tennant  v.  Phister,  51  Cal.  tory,   see   Jacobus   v.   Colgate,   217 
511,  (1876).  N.   Y.   735. 

7  For  the  statement  of  this  case, 


Sec.  2.]  Grounds  for  Demurrer.  455 

and  affords  no  reason  for  the  assumption  of  a  jurisdiction  by 
this  court  which  it  does  not  possess.  The  plaintiff  would  seem 
to  have  the  same  remedy  for  the  trespasses  alleged  that  all  other 
parties  have  for  similar  injuries.  His  lands  cannot  be  intruded 
upon  without  the  presence  in  the  state  of  the  wrongdoer,  and 
no  reason  is  suggested  why  he  could  not  seek  his  remedy  against 
the  actual  wrongdoer  in  the  courts  having  jurisdiction.  His 
remedy  is  ample,  and  it  is  no  excuse  for  assuming  a  jurisdiction 
which  we  do  not  have,  that  the  plaintiff  desires  a  remedy  against 
a  particular  person  rather  than  one  against  the  real  perpetrators 
of  the  injury  who  were  exposed  to  prosecution  in  the  place 
where  the  wrong  was  committed.     *     *     * 

The  general  term,  we  think,  also  erred  in  sustaining  tlie  de- 
murrer to  the  third  count  upon  the  ground  that  there  was  an  im- 
proper joinder  of  causes  of  action.  It  is  quite  true  that  under 
section  484  of  the  Code  of  Civil  Procedure,  causes  of  action  for 
slander  cannot  properly  be  joined  with  actions  for  injuries  to 
real  property;  but  this  was  not  the  ground  of  objection  stated 
in  the  demurrer.  The  ground  there  specified  was  that  a  cause  of 
action  of  a  transitory  nature,  of  which  the  court  had  jurisdic- 
tion, had  been  united  with  one  for  trespass  upon  land  in  another 
state,  of  which  the  court  had  no  jurisdiction.^  This  is  not  one 
of  the  grounds  of  demurrer  authorized  by  the  Code.  It  is  a 
proper  ground  of  demurrer  that  the  court  has  not  jurisdiction 
of  any  specified  cause  of  action;  but  this  does  not  authorize  a 
demurrer  upon  the  ground  that  such  causes  of  action  are  united 
with  one  of  which  it  has  jurisdiction.  The  first  and  second 
counts  of  the  complaint  must  be  held  bad  upon  the  ground  that 
the  court  had  not  jurisdiction  of  the  subject  of  the  action,  but  no 
sufficient  ground  of  demurrer  has  been  presented  to  the  third 
count,  and  it  must,  therefore,  be  held  good.  The  Code  requires 
the  grounds  of  demurrer  to  be  specifically  stated,  and  when  that 
is  not  done  it  may  safely  be  disregarded.     Code  Civil  Proc, 

§  490. 

Judgment  reversed  in  part. 

9  Compare    Jacobus    v.    Colgate,  foreign  trespass  to  land  created  a 

217  N.  Y.  735,  (1916),  -whieh  seems  new    cause    of    action    where    none 

to    hold    that    a    statute    giving    a  existed  before, 
right   to    sue   in   New   York    for    a 


456  Demurrers.  [Chap.  IV. 

MONETTE  V.  CRATT. 

Supreme  Court  of  Minnesota,  1862.     7  Minn.  234. 

Action  to  recover  a  tract  of  land  under  the  Acts  of  Congress 
in  regard  to  Indian  lands.  The  defendant  demurred  on  the 
ground  that  the  complaint  failed  to  state  facts  sufficient  to  con- 
stitute a  cause  of  action.  The  appeal  was  from  the  judgment 
for  plaintiff  on  this  demurrer. 

Atwater,  J. — The  first  objection  urged  by  the  Appellants 
before  this  Court,  is  that  this  case,  as  appears  from  the  com- 
plaint, is  res  adjudicata.  The  Appellants  demurred  to  the  com- 
plaint in  the  Court  below,  assigning  as  the  general  ground  of 
demurrer,  that  the  complaint  did  not  state  facts  sufficient  to 
constitute  a  cause  of  action.  Under  this  general  ground,  were 
several  specifications,  but  not  the  objection  here  specifically 
urged.  And  it  is  claimed  by  Respondents,  that  the  objection 
not  having  been  made  in  terms  in  the  court  below,  cannot  here 
be  considered. 

The  objection  here  stated  by  Appellants,  if  it  appears  upon 
the  face  of  the  complaint,  would  be  appropriately  urged  under 
the  general  ground  specified  in  the  demurrer.  It  has  been  re- 
peatedly held  that  a  general  demurrer  to  a  pleading,  that  it 
does  not  contain  facts  sufficient  to  constitute  a  cause  of  action 
or  defense,  is  sufficient,  without  further  specifications.^^  3  How. 
Pr.  R.  280;  4  ib.  226;  7  ib.  316;  8  ib.  159;  1  Sel.  359.  This 
principle  has  been,  impliedly  at  least,  recognized  in  Brown  v. 
Manning,  3  Minn.  37,  and  in  the  State  v.  Batchelder,  5  Minn. 
223.  In  the  latter  case,  there  was  a  general  demurrer  to  the 
reply,  for  the  reason  that  it  did  not  state  facts  sufficient  to 
constitute  ground  for  a  reply.  That  case  was  decided  on  the 
ground  tliat  the  subject  matter  was  res  adjudicata. 

If  a  party  under  such  general  ground  of  demurrer,  does  make 
certain  specifications,  we  do  not  think  he  is  necessarily  confined 

10  It  has  been  held  in   some  in-  doubtful    utility,    especially    under 

stauoes    that    a    general    demurrer  the  usual  provision  that  the  failure 

which  neither  follows  the  language  to   state   facts   sufiicient  to   consti- 

of    the    statute,    nor    specifies    the  tute     a     cause     of    action    is     not 

particular  objection  should  be  dis-  waived    though    no    demurrer    was 

regarded,  Potter  v.  Wilson,  35  Ind.  interposed.     N.  Y.  Code  Civ.  Proc. 

348,    (1871).     Such   rulings   are   of  §  499. 


Sec.  2.]  Grounds  for  Demurrer.  457 

in  his  argument  to  those  specifications,  but  may  urge  any  which 
are  pertinent  to  the  general  objection.  Under  the  general  ob- 
jection the  pleader  is  advised  what  he  is  to  meet,  and  should  be 
prepared  to  sustain  his  pleading  against  any  specification  that 
may  be  urged  under  this  general  ground.  And  especially 
against  a  specification  of  the  kind  here  urged,  which,  if  well 
taken,  must  be  fatal  in  any  stage  of  the  case  at  which  it  is 
raised.^  We  may  therefore  appropriately  consider  this  objec- 
tion here,  and  we  do  so  wdth  the  less  hesitation  in  this  case,  from 
the  fact  that  the  Respondents  have  elaborately  argued  the  ob- 
jection upon  the  merits,  and  the  Court  is  fully  advised  of  tlie 
reasons  to  be  urged  against  the  views  of  the  Appellants  herein. 
*  *  *  In  the  Federal  authority  alone  is  vested  the  power  of 
the  primary  disposition  of  lands  belonging  to  the  United  States, 
and  it  is  only  where  it  appears  that  the  title  has  actually  passed 
out  of  government  in  some  form,  that  any  ground  is  laid  for  the 
State  Courts  to  adjudicate  upon  the  title.  Where,  by  the  claim 
or  showing  of  the  Plaintiff  himself,  the  title  of  the  premises  in 
dispute  is  in  the  United  States,  we  can  conceive  of  no  possible 
state  of  facts  that  would  authorize  or  justify  the  State  Courts 
in  granting  the  relief  here  claimed,  to  wit,  that  "the  Plaintiff 
is  entitled  to  the  ownership  and  possession  of  the  premises,  with 
a  full  and  perfect  title  thereto." 

This  view  disposes  of  the  case  and  renders  it  unnecessary  to 
examine  the  other  points  raised  by  the  demurrer.  The  decision 
of  the  Court  below  overruling  the  demurrer  is  reversed. 


FULTON  FIRE  INS.  CO.  v.  BALDWIN. 

Court  of  Appeals  of  New  York,  1868.     37  N.  Y.  648. 

Mason,  J. :  *  *  *  The  action  is,  in  short,  to  recover  for  a 
loss  of  property,  sustained  by  the  plaintiffs'  assignor  in  conse- 
quence of  the  defendant's  negligence  in  suffering  the  sunken 
canal-boat  to  impede  the  navigation  of  the  canal  and  endanger 
the  property  of  those  navigating  the  canal. 

1  Accord:      Morgan  v.  Eoiise,  53     5   N.   Y.   367,    (1851). 
Mo.   219,   (1873);   Haire  v.  Baker, 


458  Demurrers.  [Chap,  IV. 

The  only  remaining  question  in  the  ease  is  whether  the  de- 
fendant, under  this  demurrer,  specifying  only  ground  of  objec- 
tion to  the  complaint,  and  which  is,  that  the  complaint  docs  not 
state  facts  sufficient  to  constitute  a  cause  of  action,  can  insist 
on  the  objection  that  the  plaintiffs  are  not  incorporated  and 
have  not  capacity  to  sue. 

There  are  six  grounds  of  demurrer  to  the  complaint  allowed 
by  the  Code.  The  first  is,  "that  the  court  has  not  jurisdiction  of 
the  person  of  the  defendant  or  the  subject  of  the  action."  The 
second  is,  "thai  the  plaintiff  has  not  legal  capacity  to  sue;"  and 
the  sixth  is,  "that  the  complaint  does  not  state  facts  sufficient  to 
constitute  a  cause  of  action."  (Code,  §  144.)  The  145th  section 
declares  that  the  demurrer  shall  distinctly  specify  the  grounds 
of  objection  to  the  complaint,  and  that  unless  it  does  it  may  be 
disregarded. 

And  section  147  provides  that  whenever  any  of  the  matters 
enumerated  in  section  144  do  not  appear  on  the  face  of  the  com- 
plaint, the  objection  may  be  taken  by  answer.  And  then  comes 
in  section  148,  which  declares  that,  if  no  such  objection  be  taken, 
either  by  demurrer  or  answer,  the  defendant  shall  be  deemed 
to  have  waived  the  same,  excepting  only  the  objection  to  the 
jurisdiction  of  the  court;  and  the  objection  that  the  complaint 
does  not  state  facts  sufficient  to  constitute  a  cause  of  action. 
The  complaint  in  this  case  states  a  good  cause  of  action  in  favor 
of  John  Van  Buren,  Jr.,  against  the  defendant,  and  a  valid 
assignment  and  transfer  of  that  cause  of  action  to  the  plaintiff ; 
and  the  omission  in  the  complaint  to  allege  that  the  plaintiffs  are 
incorporated  and  have  capacity  to  sue  cannot  be  taken  advan- 
tage of  by  the  defendant  on  this  demurrer  because  of  his  omis- 
sion to  specify  this  ground  of  objection  to  the  complaint. 

There  is  no  force  or  meaning  to  language,  or  this  omission  to 
specify  this  ground  of  objection  to  the  complaint,  operates  as  a 
waiver  of  the  objection.  The  144th  section  recognizes  six  dis- 
tinct grounds  of  demurrer  to  the  complaint,  and  the  145th  sec- 
tion declares  that  the  demurrer  shall  distinctly  specify  the 
grounds  of  objection  to  the  complaint,  and  the  148th  section  de- 
clares that,  if  no  such  objection  be  taken,  the  defendant  shall  be 
deemed  to  have  waived  the  same,  except  the  objection  to  juris- 
diction, and  that  the  complaint  does  not  state  facts  sufficient  to 
constitute  a  cause  of  action.  The  complaint  states  a  good  cause 
of  action,  and  that  the  plaintiffs  have  become  the  owners  of  it, 


Sec.  2.]  Grounds  for  Demurrer.  459 

by  a  valid  transfer  thereof  to  them,  but  does  omit  to  allege  that 
the  plaintiffs  are  a  corporation  having  capacity  to  sue.  This 
objection  must,  therefore,  be  regarded  as  waived.*  It  is  just  and 
reasonable  that  the  rule  should  be  so.  If  this  objection  to  the 
complaint  is  well  taken,  and  the  defendant  had  specified  this 
ground  of  demurrer,  the  plaintiff  would  most  probably  have 
amended  his  complaint  and  inserted  proper  averments  to  show 
them  a  corporation  having  authority  to  sue.  It  is  a  question,  to 
say  the  least,  whether  such  an  allegation  in  the  complaint  is 
necessary,  and  the  statute  relieves  the  plaintiff  from  proving 
it,  unless  the  defendant  sets  it  up  in  his  answer.  (2  R.  S.  458, 
§  3.)  The  judgment  of  the  Supreme  Court  must  be  reversed 
and  judgment  given  for  the  plaintiff  on  the  demurrer,  with 
leave  to  the  defendant  to  answer  on  the  payment  of  the  costs  of 
the  demurrer  in  this  court  and  in  the  Supreme  Court. 


HAMILTON  V.  McINDOO. 

Supreme  Court  of  Minnesota,  1900.     81  Minn.  324. 

Collins,  J,  Action  brought  by  the  plaintiff,  as  an  adminis- 
trator de  honis  nan  of  the  estate  of  Russell  Search,  deceased, 
upon  a  judgment  rendered  in  his  favor  as  such  administrator  in 

2  In  Phoenix  Bk.  v.  Donnell,  40  527,  (1897),  that  there  is  nothing 
N.  T.,  410,  (1869),  it  was  held  in  the  general  provisions  of  the 
that  a  demurrer  specially  assign-  code  to  change  the  rule  that  cor- 
ing lack  of  capacity  to  sue  could  porate  capacity  is  implied  in  the 
not   be    sustained   in    such    a   case  name. 

because    it    did    not    affirmatively  For   the    contrary   view   that   an 

appear    from    the    complaint    that  express  allegation  of  incorporation 

the  plaintiff  lacked  capacity  to  sue;  is  necessary,  see  State  v.  C.  M.  & 

the   most   that   could   be   said   was  St.    P.   Ey.,    4    S.    D.    261,    (1893). 

that  the  complaint   failed  to  show  Section    1775    of    the    New    York 

expretisly    the    plaintiff    did    have  Code  required  the  complaint  to  al- 

capacity   to   sue   as   a   corporation.  lege  the  incorporation  of  the  plain- 

At   common   law   an    express    al-  tiff    or    of   the    defendant,    as    the 

legation    of  incorporation  was   un-  case  might  be,  and  whether  it  was 

necesnnry,  Wolf  v.   Steamboat  Co.,  a    foreign    or   a   domestic   corpora- 

7    C.    B.,    103,     (1849).      See    also  tion. 
Holden  v.  Elevator  Co.,  69  Minn. 


460  Demurrers.  [Chap.  IV. 

a  court  of  competent  jurisdiction  in  the  state  of  Illinois.  On 
findings  of  fact,  judgment  was  ordered  for  the  plaintiff,  and 
this  appeal  is  from  an  order  denying  the  defendant 's  motion  for 
a  new  trial. 

The  question  to  be  met  at  the  outset  arises  out  of  the  conten- 
tion that  the  complaint  does  not  sufficiently  allege  plaintiff's  ap- 
pointment as  administrator  de  lonis  non.    The  alle<2:ations  were 
"that,  prior  to  the  proceedings  had  in  obtaining  tho  judgment 
hereinafter  referred  to,  the  above-named  Russell  Search  died  in 
the  state  of  Illinois  intestate,  and  the  plaintiff,  E.  C.  Hamilton, 
had  been  duly  appointed  administrator  de  lonis  non"  of  said 
estate,  had  duly  qualified,  and  ever  since  had  been,  and  now  is, 
such  administrator.     It  is  claimed  by  the  plaintiff  that  it  suffi- 
ciently  appears  from  these  allegations  that  the  plaintiff  was 
appointed   administrator  in   the   state   of   Illinois,   while   it   is 
contended  on  behalf  of  the  defendants  that  it  clearly  appears 
from  the  wording  of  the  allegations,  and  must  be  presumed,  in 
the  absence  of  any  averment  to  the  contrary,  that  the  appoint- 
ment was  by  a  competent  court  within  the  state  of  Minnesota. 
"We  are  not  compelled  to  determine  this  difference  of  opinion, 
for  in  either  case  the  complaint  failed  to  state  facts  sufficient 
to  constitute  a  cause  of  action.     It  merely  alleged  the  death  of 
Search  and  the  due  appointment  of  plaintiff  as  administrator 
de  lonis  non.    It  was  said  by  this  court  in  Chamberlain  v.  Tiner, 
31  Minn.  371  (18  N.  "W.  97),  and  the  authorities  are  abundant 
in  support  of  the  statement  that  "it  is  not  now  necessary,  as  it 
was  formerly,  to  make  profert  of  letters  testamentary  or  of  let- 
ters of  administration  in  the  pleadings;  but  it  is  necessary  for 
the  plaintiff  who  sues  as  executor  or  administrator  to  allege  in 
a  direct   and   issuable   form   that  he  is   such.     This  properly 
should  be  done  by  alleging  that  he  is  executor  or  administrator 
by  virtue  of  letters  issued  by  a  probate  court  of  some  county 
giving  the  name  of  the  court  and  the  term  at  which  the  letters 
were  granted."     No  form  of  words  is  absolutely  essential  to 
show  plaintiff's  authority,  but  the  fact  must  appear  substan- 
tially, so  that  issue  may  be  made  upon  the  allegations,  if  it  is 
proper  to  do  so.     See,  also,  Rossman  v.  Mitchell,  73  Minn.  198 
(75  N.  W.  1053),  in  which  the  sufficiency  of  an  allegation  in  a 
complaint  as  to  the  appointment  of  a  plaintiff  as  a  receiver, 
under  the  insolvency  law  of  1881  and  acts  amendatory,  was 
considered.    Again  it  has  been  held,  with  good  reasons  therefor, 


Sec.  2.]  Grounds  for  Demurrer.  461 

that  in  an  action  by  an  administrator  de  honis  non  the  complaint 
should  state  the  name  of  the  original  representative,  and  that, 
as  no  such  administrator  can  be  appointed  while  there  is  an 
original  executor  or  administrator,  there  must  be  an  averment 
that  he  is  dead,  or  has  resigned,  or  has  been  discharged,  or  that 
his  letters  have  been  revoked,  as  the  case  may  be.  8  Enc.  PI.  & 
Prac.  669. 

Plaintiff's  counsel  contend  that  their  failure  to  sufficiently  al- 
lege in  the  complaint  the  representative  character  of  their  client 
has  been  waived,  because  no  demurrer  was  interposed  upon  the 
ground  that  plaintiff  had  not  legal  capacity  to  sue,  or,  if  a  de- 
murrer would  not  lie,  that  there  has  been  a  waiver,  because  the 
question  of  plaintiff's  capacity  to  sue  was  not  raised  by  answer. 
Gen.  St.  1894,  §§  5234,  5235.  This  contention  is  completely 
answered  by  what  was  said  in  Rossman  v.  Mitchell,  supra,  when 
disposing  of  a  motion  for  a  reargument,  in  these  words :  ' '  The 
complaint  in  question  stated  a  cause  of  action  in  favor  of  an 
assignee  or  receiver  of  the  insolvent,  if  there  was  one;  but  it 
failed  to  state  facts  showing  that  the  plaintiff  was  such  receiver 
or  assignee."  The  complaint  here  failed  to  state  a  cause  of 
action,  and  hence  an  objection  on  that  ground  was  not  waived 
by.  failing  to  take  advantage  of  the  defect  by  demurrer  or  by 
answer.*  The  question  could  be  raised  by  objection  to  the  intro- 
duction of  the  documentary  testimony,  or  by  motion  to  dismiss 
when  plaintiff  rested,  as  it  was. 

The  point  is  also  made  by  plaintiff's  counsel  that  the  action 
was  not  brought  by  their  client  as  administrator,  but  in  his  in- 
dividual capacity,  that  he  had  the  right  to  sue  as  an  individual, 
and  therefore  that  allegations  as  to  his  representative  capacity 
were  unnecessary;  cases  being  cited  in  support  of  this  conten- 
tion. At  common  law,  and  to  maintain  some  causes  of  action, 
an  executor  or  administrator  could  sue  in  either  his  official  or 
individual   capacity,   at  his   option;   but   whether   the   present 

3  See  also  White  v.  Jay,  13  N.  Y.  letters   testamentary   in   a   suit   by 

83   (1855),  in  which  Denio,  J.,  ob-  executors  or  administrators;  unless 

served   in    reference    to    an    action  the    fact    is    stated,    the    plaintiff 

by  a  receiver:  does  not  show  any  right  to  sue." 

"In    such    a    case,    the    appoint-  For    the    difference    between    a 

ment  of  the  receiver  is   a  part  of  right   to   sue   and   capacity  to   sue, 

the  plaintiff's  title.     It  is  like  the  see  Brown  v.  Curtis,  128  Cal.  193, 

granting    of    administration    or    of  post,   p.   514. 


iG2  Demurrers.  [Chap.  IV. 

cause  of  action  is  of  that  class  we  need  not  decide.  When  a 
statute  requires,  as  it  does  here,  that  actions  must  be  prosecuted 
in  the  name  of  the  real  party  in  interest,  suits  instituted  by  an 
executor  or  administrator  upon  a  cause  of  action  belonging  to 
him  in  his  representative  capacity  must  be  brought  by  him  in 
that  capacity  (8  Enc.  PI.  &  Prac.  659,  660),  and  he  is  expressly 
authorized  to  sue  by  Gen.  St.  1894,  §  5158. 

Order  reversed. 


TROY  AUTOMOBILE  EXCH.  v.  HOME  INS.  CO. 
Court  of  Appeals  of  New  York,  1917.     221  N.  Y.  58. 

Appeal  from  an  order  affirming  a  judgment  in  favor  of 
plaintiff. 

Pound,  J. — The  action  was  brought  to  recover  upon  a  policy 
of  insurance  on  the  ground  that  the  plaintiff's  automobile  was 
stolen,  and  while  being  illegally  used  by  the  person  taking  it 
was  destroyed.  The  complaint,  alleges  among  other  things,  that 
on  the  18th  day  of  August,  1913,  for  a  good  and  valuable  con- 
sideration paid,  the  defendant  made  and  delivered  to  the  plain- 
tiff its  poli.'y  of  insurance  and  also  its  certificate  annexed  to 
the  policy,  "wherein  and  whereby  the  said  defendant  did  insure 
this  plaintiff  to  the  amount  of  $1,000  from  the  30th  day  of 
September,  1913,  to  the  30th  day  of  October,  1913,"  and  that 
upon  the  29th  day  of  August,  1913,  the  automobile  was  stolen. 
It  thus  appears  that  the  insurance  was  not  effective  until  after 
the  loss  and  that  the  complaint  does  not  state  a  cause  of  action. 
This  objection  may  be  raised  by  demurrer  without  pointing  out 
the  particular  defect  relied  upon  (Code  Civ.  Proc.  §  490),  but 
the  objection  was  not  waived  by  failure  to  raise  it  by  demurrer. 
(§  499.)  It  was  raised  by  motion*  at  the  opening  of  the  trial, 
but  without  pointing  out  the  defect.  It  has  been  held  that  it 
is  not  too  late  to  raise  the  question  for  the  first  time  at  the 
close  of  the  trial.     (Weeks  v.  O'Brien,  141  N.  Y.  199,  204.) 

4  Under  the  practice  in  a  number  be   taken   advantage   of   by   objee- 

of    the    states    the    failure    of   the  tion   at  the  trial  to   the  introdue- 

complaint  to   state   facts  sufficient  tion  of  any  evidence  under  it,  Gar- 

to  constitute  a  cause  of  action  may  ner  v.  McCullough,  45  Mo.  348. 


Sec.  2.]  Grounds  for  Demurrer.  463 

The  ruling  of  the  trial  court  denying  defendant's  motion  to 
dismiss  the  complaint  survives  unanimous  affirmance  and  is 
open  to  review  in  this  court.  (Kelly  v.  Security'  Mut.  Life  Ins. 
Co.,  186  N.  Y.  16).  The  Appellate  Division  has  held  that  the 
objection  was  in  such  general  form  that  the  defendant  may  not 
now  avail  itself  of  the  insufficiency  of  the  complaint. 

If  this  were  a  matter  of  variance  between  the  pleading  and 
proof ;  a  failure  to  allege  correctly  the  terms  of  the  policy  intro- 
duced in  evidence ;  a  mere  technicality,  the  error  would  be 
disregarded  if  it  appeared  that  the  substantial  rights  of  the  ad- 
verse party  were  not  affected  thereby.  (Code  Civ.  Proc. 
§  1317.)  "The  allegations  of  a  pleading  must  be  liberally  con- 
strued, with  a  view  to  substantial  justice  between  the  parties." 
(Code  Civ.  Proc.  §  519.)  But  the  record  is  destitute  of  the 
suggestion  that  the  loss  occurred  while  any  policy  was  in  force. 
The  policy  is  in  evidence.  The  date  of  the  loss  is  not  in  dispute. 
The  proofs  follow  literally  the  allegations  of  the  complaint.  No 
other  policy  was  produced  on  the  trial,  in  the  Appellate  Division 
or  in  this  court.  We  must  not  guess  that  a  policy  covering  the 
date  of  loss  is  in  existence  in  order  to  affirm  this  judgment. 
The  motion  to  dismiss  addresses  itself  to  the  merits.  No  amend- 
ment has  been  asked  for.  The  correctness  of  the  ruling  must  be 
tested  by  the  complaint  as  it  stands,  not  as  it  might  be  changed 
by  amendment.  If  we  affirm  this  judgment  we  will  hold  that 
the  defendant  is  liable  for  a  loss  which  did  not  occur  during  the 
life  of  the  policy.  The  defendant  may  have  been  disingenuous 
but  the  plaintiff  has  been  careless  and  the  plaintiff  must  make 
out  its  case.  Procedure  is  still  a  matter  of  rules.  Courts,  ap- 
plying such  rules  with  the  utmost  liberality,  must  not  assume 
that  which  does  not  appear.  Substantial  justice  regards  both 
parties  equally.  The  defect  is  so  manifest  that  he  who  runs  may 
read.  Defendant's  motion  is  not  like  a  general  objection  to 
evidence  or  a  general  motion  for  a  nonsuit  where  something  cor- 
rectible  may  be  hidden  behind  generalities.  (Haines  v.  N.  Y. 
C.  &  H.  R.  R.  Co.,  145  N.  Y.  235,  238.)  It  cannot  be  said  that 
defendant  concealed  anything.  To  conceal  here  means  more 
than  failure  to  reveal.  It  means  purposely  to  keep  from  sight. 
Plaintiff  has  had  ample  time  to  recover  from  its  surprise  to  the 
extent  of  showing  that  the  defect  was  amendable.  Wlien  the 
question  was  raised  neither  court  nor  counsel  sought  an  ex- 
planation.   The  entire  responsibility  for  failure  to  discover  the 


464  Demurreks.  [Chap.  IV. 

defect  in  the  complaint  does  not  rest  on  the  defendant.  If  we 
could  say  that  if  the  defect  had  been  pointed  out  it  could  have 
been  supplied,  then  we  might  say  that  good  faith  and  fair  prac- 
tice required  the  defendant  to  point  it  out,  but  how  can  we 
say  that?     *     *     * 

The  judgment  should  be  reversed,  and  a  new  trial  granted, 
with  costs  to  abide  the  event,  so  that  plaintiff  may  make  a  mo- 
tion to  amend  its  complaint  if  so  advised,  upon  such  terms  as 
the  Special  Term  may  direct. 

Judgment  reversed. 


Section  3.    Effect  on  Prior  Pleadings. 

STRATTON  v.  ALLEN. 

Supreme  Court  of  Minnesota,  1862.     7  Minn.  502. 

The  complaint  charged  that  on  the  6th  day  of  Januarj^  1857, 
Plaintiffs  were  the  owners  and  possessed  of  certain  personal 
property  (describing  the  same),  and  on  that  said  day  "the  said 
defendant  became  possessed  of  and  ^vrongfully  detained  from 
them,  said  plaintiffs,  said  personal  property,  of  the  value,"  &c. 
There  was  no  allegation  of  a  demand  or  refusal. 

Defendants  answered,  and  plaintiffs  demurred  to  the  answer. 
The  demurrer  was  sustained  by  the  court  below,  and  judgment 
entered  in  favor  of  the  plaintiff  for  a  return,  &c.  Defendant 
renews  by  writ  of  error. 

Emmett,  C.  J. — There  was  a  demurrer  in  this  case  to  the 
answer,  but  the  defendant  below  insists  that  the  complaint  is 
radically  defective,  in  that  it  appears  thereby  that  the  court  had 
no  jurisdiction  of  the  subject  of  the  action,  (the  value  of  the 
property  being  stated  at  ninety-nine  dollars  only,  and  no  dam- 
ages alleged),  and  because  it  does  not  state  facts  sufficient  to 
constitute  a  cause  of  action.  Both  parties  have  confined  their 
arguments  to  these  alleged  defects  of  the  complaint. 

The  old  rule  that  a  demurrer  reaches  the  first  defective  plead- 
ing, is  subject,  under  our  system  of  practice,  to  this  important 
qualification,  that  only  an  objection  to  the  jurisdiction,  and  the 
objection  that  the  complaint  does  not  state  facts  sufficient  to 


Sec  3.]  Effect  on  Prior  Pleadings.  465 

constitute  a  cause  of  action,  are  saved  to  the  defendant  upon  a 
demurrer  to  the  answer;  because  the  statute  declares  every 
other  defect  waived  by  answering  over.^  These,  however,  are 
the  very  objections  relied  upon  by  the  defendant  below,  the 
plaintiff  in  error  here,  and  he  specifies  a  number  of  grounds  of 
objection  under  each  of  these  heads.  But  it  is  only  necessary 
to  consider  one  of  these  in  order  to  dispose  of  this  case. 

It  is  a  well  settled  rule  that,  where  a  person  comes  lawfully 
into  the  possession  of  personal  property,  an  action  cannot  be 
maintained  against  him  to  recover  possession  thereof,  until  the 
property  shall  have  been  demanded  of  him,  and  he  shall  have 
refused  to  give  it  up.  In  this  case,  as  no  unlawful  taking  is 
averred,  the  possession  of  the  defendant  below  must  be  presumed 
to  have  been  lawful ;  and  as  no  demand  and  refusal  is  alleged, 
the  inevitable  conclusion  is  that  no  demand  was  made.  The 
action,  therefore,  was  premature,  for  until  after  demand  and 
refusal,  no  right  of  action  exists. 

Judgment  reversed. 


^  GARTH  V.  CALDWELL. 

Supreme  Court  of  Missouri,  1880.     72  Mo.  622. 

Statutory  action  of  replevin  to  recover  certain  corn.  There 
was  a  verdict  and  judgment  for  plaintiff,  and  defendant  ap- 
pealed, assigning  the  insufficiency  of  the  complaint  in  failing 
to  allege  that  the  property  came  into  the  possession  of  the  de- 
fendant.2 

Sherwood,  C.  J. — Granting  that  the  petition  be  defective  in 
that  it  does  not  allege  that  the  property  was  in  the  possession  of 
the  remaining  defendant,  Caldwell,  yet  it  does  allege  that  the 
defendant  wrongfully  detains  the  property,  and  this  is  an  in- 
direct and  inferential  allegation  that  the  property  was  in  the 
possession  of  the  defendant;  an  allegation  which,  though  de- 
fective, is  certainly  good  after  verdict,  since  the  words  ''wrong- 
fully detains"  necessarily  imply  the  adverse  possession  of  the 

1  Accord:      Leach   v.   Ehodes,   49  2  Statement   condensed   and  part 

lud.  291,   ante,  p.  287.  of   the   opinion   omitted. 


466  Demurrers.  [Chap.  IV, 

property  sued  for  in  replevin.  Tidd's  Prac.  919,  and  cases 
cited;  and  it  will  be  presumed  (if  the  evidence  be  not  preserved 
and  overthrow  such  presumption,  International  Bank  v.  Frank- 
lin Co.,  65  Mo.  105),  that  those  facts  defectively  stated  or 
omitted,  were  in  proof  before  the  jury  rendering  the  verdict, 
or  else  that  no  such  verdict  would  have  been  returned.  In  these 
instances  ''such  defect  is  not  any  jeofail  after  verdict."  1 
Saund.  Rep.  228,  note  1. 

But  a  reversal  cannot  occur  in  this  ease  on  account  of  the 
defect  in  the  petition,  for  another  very  sufficient  reason,  that 
the  answer  "explains  well  enough  how  Caldwell  became  con- 
nected with  the  case,"  alleging  that  he  had  seized  and  taken  it 
as  sheriff,  etc.,  and  "denies  that  he  wrongfully  detains  said 
property."  The  answer  thus  cures  any  defect  in  the  petition. 
For  the  denial  that  defendant  "wrongfully  detains"  the  prop- 
erty necessarily  admits  the  detention,  but  only  denies  the  wrong- 
fulness thereof.  The  defendant  thereby  admits  that  he  has 
the  property  in  his  possession.  The  allegation  in  the  answer 
that  defendant  had  seized  and  taken  the  property,  etc.,  and 
asks  for  its  return  and  delivery  to  him,  also  shows  that  defend- 
ant was  in  possession  of  the  property  at  the  time  plaintiff  sued 
out  his  writ  of  replevin.  These  allegations  of  the  answer,  by 
putting  in  issue  that  fact,  which  the  petition  should  have  alleged, 
cure  such  lack  of  allegation.     Stivers  v.  Home,  62  Mo.  473. 

Even  at  common  law  it  was  a  rule  of  pleading  that  an  omis- 
sion to  state  a  material  fact,  either  in  the  declaration  or  special 
plea,  would  be  obviated  if  the  pleading  of  the  opposite  party 
put  the  matter  in  issue.  This  rule  was  known  as  "express 
aider.  "3  In  an  old  case  in  Massachusetts  the  omission  of  a 
necessary  averment  that  the  defendants  had  mills  on  and  below 
a  certain  mill-dam,  was  held  supplied  by  a  plea  admitting  that 
they  were  seized  and  in  possession  of  certain  mills,  Parker,  C.  J. 
remarking :  That  if  ' '  the  parties  go  to  trial  upon  a  full  knowl- 
edge of  the  charge,  and  the  record  contains  enough  to  show  the 
court  that  all  the  material  facts  were  in  issue,  the  defendant 

3  There  is  some  confusion  in  the  seems  that  such  a  denial  will  not 

cases    as    to    whether    an    answer  aid  the  complaint,  Scofield  v.  White- 

merely   denying   an   essential   fact,  legge,   49  N.   Y.   259,    (1872),   ante 

not  alleged  in  the   complaint,  will  p.   276. 

cure  the  defect.     Where  the  objec-  After    verdict   the   rule   is   prob- 

tion    is    taken    before    verdict,    it  ably   otherwise. 


Sec  3.]  Effect  on  Prior  Pleadings.  467 

shall  not  tread  back  and  trip  up  the  heels  of  the  plaintiff  on  a 
defect  which  he  would  seem  thus  purposely  to  have  omitted  to 
notice  in  the  outset  of  the  controversy."  Slack  v.  Lyon,  9  Pick. 
62 ;  Bliss  on  Code  Plead.  §  437,  and  cases  cited.    *    *    * 

Judgment  affirmed. 


I.  B.  &  W.  RY.  CO.  V.  FOSTER. 

Supreme  Court  of  Indiana,  1888.     107  Ind.  430. 

ZoLLARS,  J. — It  is  alleged  in  appellee's  complaint,  that  as  the 
result  of  appellant's  negligence,  fire  escaped  from  one  of  its 
trains  passing  over  its  road  in  Warren  County,  and  ignited 
rubbish  and  inflammable  material  upon  its  right  of  way ;  that 
the  fire  spread  to  his  land  and  destroyed  fences,  growing  pas- 
ture and  a  quantity  of  hay. 

Appellant,  by  counsel,  at  the  proper  time,  challenged  the 
jurisdiction  of  the  court,  and  now  insists  that  the  action  should 
have  been  brought  in  the  Fountain  Circuit  Court,  and  not  in 
Warren  County. 

For  a  plea  to  the  jurisdiction  of  the  court,  and  in  abatement, 
appellant  answered  that  it  had  no  office  for  the  transaction  of 
business  in  Warren  County,  but  had  such  an  office  in  Fountain 
county ;  that  it  had  no  agent  located  in  Warren  county ;  that  no 
summons  was  taken  out  to  the  sheriff  of  Warren  county,  and 
that  the  clerk,  upon  the  order  of  appellee,  issued  a  summons  to 
the  sheriff  of  Fountain  county. 

Appellant's  contention  rests  upon  the  proposition  that  an 
action  of  this  character  must  be  brought  in  the  county  where 
the  company  has  an  office  or  agent,  in  other  words,  in  a  county 
where  the  company  may  be  said  to  have  a  residence,  as  provided 
by  section  312,  R.  S.  1881. 

We  think,  however,  that  the  action  is  for  an  injury  to  real 
estate,  within  the  meaning  of  section  307  of  the  code,  R.  S.  1881, 
and  was  properly  brought  in  Warren  county,  where  the  real 
estate  is  situated.  The  fire  destroyed  fences  and  growing  pas- 
ture, and  these  were  a  part  of  the  realty.  Owens  v.  Lewis,  46 
Ind.  489  (15  Am.  R.  295),  and  cases  there  cited.  Their  de- 
struction, therefore,  was  an  injury  to  the  real  estate.     *     *     • 


468  Demurrers.  [Chap.  IV. 

Upon  the  foregoing,  we  conclude  that  the  court  below  did  not 
err  in  sustaining  the  demurrer  to  appellant's  plea  in  abatement. 

The  sufficiency  of  the  complaint  was  not  questioned  below  by 
demurrer,  nor  by  a  motion  to  arrest  the  judgment;  nor  is  its 
sufficiency  questioned  in  this  court,  except  by  the  assignment  that 
the  court  below  erred  in  not  carrying  the  demurrer  to  the  plea 
back,  and  sustaining  it  to  the  complaint.  It  is  a  sufficient  an- 
swer to  this  assignment  of  error  to  say  that  demurrers  to  answers 
in  abatement  do  not  reach  back  to  the  complaint,  because  such 
answers  are  not  addressed  to  the  complaint.*  Price  v.  Grand 
Rapids,  etc.  R.  R.  Co.,  18  Ind.  137.  See,  also,  Anderson  Build- 
ing, etc.,  Ass'n  v.  Thompson,  88  Ind.  405.    *    *    * 

Judgment  affirmed. 

1  See  Felton  G.  &  E.  Co.  v.  Tele-      counterclaim    will    not    be    carried 
phone  Co.,  200  N.  Y.  257,   (1911),      back  to  the  complaint, 
to   the   effect   that   demurrer  to   a 


CHAPTER  V. 
THE  ANSWER. 

New  York  Code  of  Civil  Procedure. 
500.* — The  answer  of  the  defendant  must  contain:     1.     A 


1  This  section  appears  in  sub- 
stance in  nearly  all  of  the  codes, 
and  in  most  of  them  in  practically 
the  same  language. 

See  Alaska,  Code,  1900,  §  63; 
Arizona,  E.  S.,  1913,  §  467,  (sub- 
stantially different  from  New  York 
Code)  Arkansas,  Dig.  Stat.,  1921, 
§  1194;  California,  Code  Civ.  Proc, 
1915,    §    437;    Connecticut,    G.    S., 

1918,  §   5632;   Idaho,   Comp.   Stat., 

1919,  §  6694;  Indiana,  Burn's  Ann. 
Stat.,  1914,  §  352;  Iowa,  Comp. 
Code,  1919,  §  7192;  Kansas,  G.  S., 
1915,  §  6989;  Kentucky,  Rev.  Code, 
1900,  §  95;  Minnesota,  G.  S.,  1913, 
§  7556;  Missouri,  R.  S.,  1919,  § 
1232;  Montana,  Rev  Code,  1907,  § 
6540;  Nebraska,  Ann.  Stat.,  1911, 
§  1102;  Nevada,  Rev.  Laws,  1912, 
§  5046;  New  Mexico,  Ann.  Stat., 
1915,  §  4115;  New  York,  Civ.  Prac. 
Act,  1920,  §  261,  amended,  (same 
as  §  500,  omitting  the  phrase,  "in 
ordinary  and  concise  language, 
etc.")  North  Carolina,  Consol. 
Stat.,  1919,  §  519;  North  Dakota, 
Comp.  Laws,  1913,  §  7448;  Ohio, 
Gen.  Code,  1921,  §  11314;  Okla- 
homa, Rev.  Laws,  1910,  §  4745; 
Oregon,  Laws,  1920,  §  73;  South 
Carolina,  Code,  1912,  §  199,  South 
Dakota,  Rev.  Code,   1919,   §   2353; 


Utah,  Comp.  Laws,  1917,  §  6575; 
Washington,  Rem.  &  Bal.  Code, 
1910,  §  264;  Wisconsin,  Stat.,  1919, 
§  2655;  Wyoming,  Comp.  Stat., 
1920,  §  5659;  U.  S.  Equity  Rules, 
1912,  No.  30:  The  defendant  in 
his  answer  shall  in  short  and  sim- 
ple terms  set  out  his  defense  to 
each  claim  asserted  by  the  bill, 
omitting  any  mere  statements  of 
evidence  and  avoiding  any  general 
denial  of  the  averments  of  the  bill, 
but  specifically  admitting  or  deny- 
ing or  explaining  the  facts  upon 
which  the  plaintiff  relies,  unless 
the  defendant  is  without  knowl- 
edge, in  which  case  he  shall  so 
state,  such  statement  operating  as 
a  denial.  Averments  other  than 
of  value  or  amount  of  damages,  if 
not  denied,  shall  be  deemed  con- 
fessed, except  as  against  an  infant, 
lunatic  or  other  person  non  compos 
and  not  under  guardianship;  but 
the  answer  may  be  amended,  by 
leave  of  the  court  or  judge,  upon 
reasonable  notice,  so  as  to  put  any 
averment  in  issue,  when  justice  re- 
quires it.  The  answer  may  state 
as  many  defenses,  in  the  alterna- 
tive, regardless  of  consistency,  as 
the  defendant  deems  essential  to 
his   defense. 


(469) 


470  The  Answer.  [Chap.  V. 

general  or  specific  denial  of  each  material  allegation  of  the 
complaint  controverted  by  the  defendant,  or  of  any  knowledge 
or  information  thereof  sufQeient  to  form  a  belief.  2.  A  state- 
ment of  any  new  matter  constituting  a  defense  or  counterclaim,* 
in  ordinary  and  concise  language,  without  repetition. 

§  501. — The  counter-claim,  specified  in  the  last  section,  must 
tend  in  some  way,  to  diminish  or  defeat  the  plaintiff's  recovery, 
and  must  be  one  of  the  following  causes  of  action  against  tiie 
plaintiff,  or,  in  a  proper  case,  against  the  person  Vt^hom  he  repre- 
sents, and  in  favor  of  the  defendant,  or  of  one  or  more  defend- 
ants, between  whom  and  the  plaintiff  a  separate  judgment  may 
be  had  in  the  action: 

1.  A  cause  of  action  arising  out  of  the  contract  or  trans- 
action, set  forth  in  the  complaint  as  the  foundation  of  the  plain- 
tiff's claim,  or  connected  with  the  subject  of  the  action. 

2.  In  an  action  on  contract,  any  other  cause  of  action  on  con- 
tract, existing  at  the  commencement  of  the  action. 

§  507.  A  defendant  may  set  forth  in  his  answer,  as  many 
defenses  or  counter-claims,  or  both,  as  he  has,  whether  they  are 
such  as  were  formerly  denominated  legal  or  equitable.  Each 
defense  or  counter-claim  must  be  separately  stated,  and  num- 

The  answer  must  state  in  short  a  counter-claim,  upon  which  the 
and  simple  form  any  counter-claim  defendant  demands  an  affirmative 
arising  out  of  the  transaction  which  judgment,  where  one  or  more  of 
is  the  subject  matter  of  the  suit,  the  following  objections  thereto, 
and  may,  without  cross-bill,  set  out  appear  on  the  face  of  the  counter- 
any  set-off  or  counter-claim  against  claim: 

the   plaintiff   which    might    be    the  1.  That  the   court  has  not  juris- 

subject  of  an  independent  suit   in  diction   of  the   subject   thereof, 

equity   against  him,   and  such   set-  2.  That    the    defendant    has    not 

off    or    counter-claim,    so    set    up,  legal  capacity  to  recover  upon  the 

shall    have    the    same    effect    as    a  same. 

cross-suit,  so  as  to  enable  the  court  3.  That   there   is   another   action 

to   pronounce    a  final   judgment   in  pending  between  the  same  parties 

the  same  suit  both  on  the  original  for  the  same  cause, 

and  cross-claim.  4.  That  the  counter-claim  is  not 

2  The  plaintiff  may  demur  to  a  of  the  character  specified  in  sec- 
counter-claim  or  a  defence  consist-  tion  five  hundred  and  one  of  this 
ing   of   new    matter,    contained    in  act. 

the  answer,  on  the  ground  that  it  5.  That  the  counter-claim  does 
is  insufficient  in  law,  upon  the  face  not  state  facts  sufficient  to  con- 
thereof.  N.  Y.  Code  Civ.  Proc.  stitute  a  cause  of  action.  N.  Y. 
§  494.  Code   Civ.   Proc.   §    495. 

The  plaintiff  may  also  demur  to 


Sec.  1.]  General  and  Specific  Denials.  471 

bered.  Unless  it  is  interposed  as  an  answer  to  the  entire  com- 
plaint, it  must  distinctly  refer  to  the  cause  of  action  which  it  is 
intended  to  answer. 

§  508.  A  partial  defense  may  be  set  forth,  as  prescribed  in 
the  last  section ;  but  it  must  be  expressly  stated  to  be  a  partial 
defense  to  the  entire  complaint,  or  to  one  or  more  separate 
causes  of  action,  therein  set  forth.  Upon  a  demurrer  thereto, 
the  question  is,  whether  it  is  sufficient  for  that  purpose.  Matter 
tending  only  to  mitigate  or  reduce  damages,  in  an  action  to 
recover  damages  for  the  breach  of  a  promise  to  marry,  or  for 
a  personal  injury,  or  an  injury  to  property,  is  a  partial  defense 
within  the  meaning  of  this  section. 

§  509.  Where  the  defendant  deems  himself  entitled  to  an 
affirmative  judgment  against  the  plaintiff,  by  reason  of  a  coun- 
ter-claim interposed  by  him,  he  must  demand  the  judgment  in 
his  answer. 

§  522.  Each  material  allegation  of  the  complaint,  not  con- 
troverted by  the  answer,  and  each  material  allegation  of  new 
matter  in  the  answer,  not  controverted  by  the  reply,  where  a 
reply  is  required,  must,  for  the  purposes  of  the  action,  be  taken 
as  true.  But  an  allegation  of  new  matter  in  the  answer,  to 
which  a  reply  is  not  required,  or  of  new  matter  in  a  reply,  is 
to  be  deemed  controverted  by  the  adverse  party,  by  traverse  or 
avoidance,  as  the  case  requires. 


Section  1.    General  and   Specific  Denials. 

CLARK  v.  FINNELL. 

Court  of  Appeals  of  Kentucky,  1855.     16  B.  Monroe  329. 

Chief  Justice  Marshall  delivered  the  opinion  of  the  court, 
Finnell,  Kinkead  and  Winston,  commissioners  appointed  by 
the  Kenton  Circuit  Court  to  close  the  affairs  of  the  Kentucky 
Trust  Company  Bank,  under  the  3d  section  of  an  act  to  amend 
the  charter  of  said  bank,  approved  January  2,  1852  (Session 
Acts,  14),  brought  this  action  by  petition  against  Clark,  the  ac- 
ceptor, Robbins,  the  drawer,  and  Mack  and  Payson,  indorsers, 
of  a  bill  of  exchange  for  $7,321.40,  dated  at  Cincinnati,  October 


472  The  Answer.  [Chap.  V. 

6,  1854,  payable  thirty  days  after  date,  at  the  Mechanic's  Bank 
of  New  York,  and  addressed  to  Clark  at  the  New  England  Bank, 
Boston,  Massachusetts.  Process  upon  the  petition  was  served 
upon  Robbins  and  Payson  alone,  but  Mack  united  with  them  in 
filing  an  answer  sworn  to  by  these  three,  and  a  demurrer  having 
been  sustained  to  each  paragraph  of  the  answer,  judgment  was 
rendered  against  the  defendants  without  naming  them,  for 
$7,321.40,  with  interest  from  the  6th  day  of  November,  1854, 
and  for  seventy-five  cents,  the  cost  of  protest,  together  with  the 
costs  of  the  suit.    *    *    * 

The  material  questions,  however,  arise  on  the  demurrer  to  the 
answer.  The  first  paragraph  says  the  defendants  do  not  owe, 
and  ought  not  to  pay,  the  amount  of  the  bill,  "for  they  do  not 
admit  the  regular  protest  thereof,  and  notice,  etc.,"  as  charged 
in  the  petition,  and  require  proof,  etc.  This  paragraph  of  the 
answer  is  clearly  insufficient  under  the  rule  prescribed  by  the 
2d  and  3rd  clauses  of  section  125  of  the  Code.  It  neither  sets 
'forth  new  matter,  as  allowed  by  the  3rd  clause,  nor  contains 
a  denial  of  any  allegations  contained  in  the  petition,  nor  of  any 
knowledge  or  information  thereof  sufficient  to  form  a  belief. 
That  the  defendants  do  not  admit  a  certain  fact,  and  call  for 
proof,  etc.,  is  not  a  denial,^  nor  sufficient,  under  the  Code,  to  put 
in  issue  a  fact  as  to  which  the  defendants  might  have  knowledge 
or  belief.  The  general  statement  that  the  defendants  do  not 
owe,  when  the  petition  merely  states  the  facts  from  which  in- 
debtedness or  liability  is  implied  by  law,  is  no  proper  response 
to  the  petition,  because  it  neither  denies  any  allegation  of  fact, 
nor  states  any  new  matter  constituting  a  defense.  But  if  it  were 
allowed  to  be  good  in  analogy  to  the  plea  of  nil  dehit  or  non 
assumpsit,  it  might  authorize  a  defense  to  be  made,  in  the  evi- 
dence of  which  there  was  no  indication  in  the  answer.  And  the 
object  of  the  Code  is  that  the  pleadings  shall  state  facts,  and 
not  mere  implications  of  law.  The  court,  therefore,  properly 
sustained  the  demurrer  to  the  first  paragraph  of  the  answer, 
and  for  the  same  reasons  it  properly   rejected  the   proposed 

3  Ace.   Sheldon   v.    Middleton    10      ner,  13  Ohio  St.  263,   (1862). 
la.  17,   (1859);   Boniberger  v.  Tur- 


Sec.  1.]  General  and  Specific  Denials.  473 

amendment,  which  in  form  and  substance  was  nothing  but  a 
plea  of  nil  debii.^ 

Judgment  affirmed. 


LEWIS  V.  COULTER. 
Supreme  Court  of  Ohio,  1859.     10  Ohio  St.  452. 

The  plaintiff  in  error,  defendant  below,  filed  an  answer  to 
the  petition  of  the  plaintiff  below,  in  these  words: 

"The  said  defendant  denies  all  the  material  allegations  of 
said  plaintiff  in  his  said  petition." 

To  this,  the  plaintiff  below,  demurred,  and  assigned  for  cause 
that  the  same  did  not  state  facts  sufficient  to  constitute  a  de- 
fense to  the  action.  The  court  below  sustained  the  demurrer, 
and  the  defendant  excepted,  but  thereupon  took  leave  to  file 
an  amended  answer,  which  he  did,  and  in  which  he  made  his 
denials  more  specific  and  certain.  On  the  issue  thus  joined 
there  M^as  a  trial,  and  the  plaintiff  below  had  a  verdict  and 
judgment. 

The  ruling  of  the  court  sustaining  the  demurrer  to  the  first 
answer,  is  assigned  for  error. 

By  the  Court.  1.  The  court  below  erred  in  sustaining  the 
demurrer.  The  answer,  liberally  construed,  as  required  by  the 
code  (sec.  2),  was  good  on  demurrer.    But, 

2.  The  defendant  below,  having  filed  an  amended  answer, 
and  had,  under  that,  all  the  benefits  he  could  have  derived  from 
the  first  answer,  the  error  is  not  such  as  requires  a  reversal  of  the 
judgment. 

3.  The  first  answer,  though  good  on  demurrer,  was  not  suffi- 
ciently certain  and  specific ;  and,  had  a  motion  been  made  for 
that  purpose,  the  defendant  below  miglit  have  been  properly 

4  Compare    Hoffman    v.    Eppers,  ances   in  the   plaintiff's   complaint 

41   Wis.  251,    (1876),   to  the   effect  alleged,    etc.",    is    in    substance    a 

that  an  answer  stating  that   "de-  good   general  denial, 
r'endant  is  not  guilty  of  the  griev- 


474  The  Answer.  [Chap.  V. 

required  to  make  the  same  more  certain  and  specific.^  A  pleader 
ought  not  to  be  permitted,  by  the  use  of  the  qualifying  word 
"material,"  to  assume  to  himself  the  determination  of  the  ques- 
tions as  to  what  facts  are  material,  and  thus  render  a  conviction 
for  perjury,  on  a  willfully  false  verification,  difficult  or  impos- 
sible. And  where  the  denial  is  general,  it  should  be  not  simply 
of  "all,"  but  "of  each  and  all,"  or  "each  and  every"  of  the 
allegations  referred  to. 

Judgment  affirmed. 


CANFIELD  V.  TOBIAS. 
Supreme  Court  of  California,  1863.     21  Cat.  349. 

Cope,  J.,  delivered  the  opinion  of  the  court. 

This  is  an  action  to  recover  a  balance  alleged  to  be  due  on  an 
account  for  goods,  wares,  and  merchandise.  The  plaintiff  ob- 
tained a  judgment  upon  the  pleadings,  and  the  only  question  is 
as  to  the  sufficiency  of  the  answer. 

The  answer  admits  that  the  indebtedness  once  existed,  but 
avers  that  certain  promissory  notes,  signed  by  the  defendants 
and  indorsed  by  a  third  person,  were  received  by  the  plaintiffs 
in  satisfaction  of  the  debt.  It  contains  a  copy  of  a  receipt  pur- 
porting to  have  been  signed  by  the  plaintiffs,  acknowledging 
that  the  notes  were  received  in  full  payment  of  the  amount  due, 
and  avers  that  the  notes  themselves  have  been  paid.  For  the 
purposes  of  the  case,  the  matters  set  forth  in  the  answer  are  to  be 
taken  as  true,  and  there  is  no  doubt  that  these  matters,  relieved 
of  other  considerations,  constitute  a  defense  to  the  action.  It  is 
claimed,  however,  that  the  answer  fails  to  deny,  or  denies  in- 
sufficiently, certain  allegations  of  the  complaint  charging  the 
defendants  with  fraud  and  misrepresentations  in  procuring  the 
assent  of  the  plaintiffs  to  the  arrangement  referred  to.  The 
character  of  the  arrangement  is  fully  set  forth  in  the  complaint, 
and  the  allegations  upon  the  subject  were  inserted  by  way  of 
anticipation,  and  not  as  a  part  of  the  cause  of  action  necessary 

« 

5  But   see  Montour  v.  Purdy,  11      denial  is  bad  in   substance. 
Minn.    384,     (1866),    that    such    a 


Sec.  1.]  General  and  Specific  Denials.  475 

to  be  stated  in  the  first  instance.  They  are  not,  therefore,  such 
allegations  as  were  required  in  the  complaint,  and  treating  the 
denials  in  the  answer  as  insufficient  to  raise  an  issue  upon  them, 
the  question  occurs  as  to  whether  they  are  to  be  acted  upon  as 
admitted.  The  statute  provides  that  every  material  allegation 
in  the  complaint,  not  specifically  controverted  by  the  answer, 
shall  be  taken  as  true ;  and  a  material  allegation  is  defined  to  be 
one  which  is  essential  to  the  claim,  and  cannot  be  stricken  from 
the  pleading  without  leaving  it  insuffiL-icut.  (Prac.  Act,  sees.  65, 
66.)  It  would  seem  from  this  that  an  allegation  which  is  not 
essential  to  the  claim,  and  which,  therefore,  is  an  immaterial 
one,  is  not  an  allegation  necessary  to  be  controverted  by  the 
answer,  in  order  to  avoid  the  consequence  attached  to  a  failure 
in  this  respect  as  to  a  material  allegation.  The  language  used 
is  equivalent  to  saying,  that  unless  the  allegation  is  essential  to 
the  sufficiency  of  the  pleading  this  consequence  is  not  to  follow, 
for  expressio  unius  est  exclusio  alterius  is  the  rule  in  such  cases. 
The  only  allegations  essential  to  a  complaint  are  those  required 
in  stating  the  cause  of  action,  and  allegations  inserted  for  the 
purpose  of  intercepting  and  cutting  off  a  defense  are  superfluous 
and  immaterial.  The  matter  alleged  may  be  material  in  the  case, 
but  immaterial  in  the  complaint,  and  a  plaintiff  cannot  by  plead- 
ing such  matter  at  the  outset®  call  upon  the  defendant  to  answer 
it.  He  must  plead  it  at  the  proper  time  and  in  pursuance  of 
the  rules  regulating  the  course  of  proceeding,  and  he  cannot 
anticipate  the  defense  to  be  made  and  reply  to  it  in  advance. 
The  object  of  such  pleading  is  to  put  the  adverse  party  upon 
his  oath  without  making  him  a  witness,  and  the  effect  of  allow- 
ing it  would  be  to  establish  a  system  of  discovery  in  conflict  with 
the  spirit  of  the  statute.  We  are  of  opinion,  therefore,  that  the 
allegations  in  question  are  not  such  as  the  defendants  were 
called  upon  to  answer,  and  that  no  inference  of  their  truth  is 
to  be  drawn  from  a  failure  to  deny  them.''' 

Judgment  reversed. 

6  At  common  law   it   seems   that  5   Exch.  203,   (1850). 

a  traverse   of  a  premature   allega-  1  But    see    Whetstone    v.    Beloit 

tion  was  bad  on  demurrer,  but  if  Straw  Board  Co.,  76  "Wis.  613,  ante 

issue  were  Joined,  the  verdict    might  p.    33,    apparently   sanctioning   the 

cure   the    defect,   Lush   v.   Eussell,  practice  of  anticipating  a  defence. 


476  The  Answer,  [Chap.  V. 

KINGSLEY  V.  GILMAN. 

Supreme  Court  of  Minnesota,  1867.     12  Minn.  515. 

McMillan,  J.*  This  is  an  appeal  from  an  order  of  the  dis- 
trict court  striking  out  a  portion  of  the  defendant's  answer. 
The  portion  of  the  answer  stricken  out  is  as  follows:  "The  said 
defendant  denies  each  and  every  statement  and  averment,  and 
every  part  of  the  same,  in  said  amended  complaint  contained, 
as  therein  stated  or  otherwise,  save  as  hereinafter  stated,  ad- 
mitted, or  qualified."  The  grounds  of  the  motion  to  strike  out 
this  portion  of  the  answer  were  as  follows:  That,  "the  same  is 
so  indefinite  and  uncertain  that  the  precise  nature  of  the  de- 
fense is  not  apparent,  and  that  the  same  does  not  contain  a  de- 
nial of  each  nor  of  any  allegation  in  the  complaint,  nor  of  any 
knowledge  or  information  thereof  sufficient  to  form  a  belief." 

The  respondent  interposes  the  objection  that  this  is  not  an 
order  involving  the  merits  of  the  action,  or  some  part  thereof, 
but  merely  a  question  of  practice  resting  in  the  discretion  of 
the  court,  and  is  not  appealable. 

This  portion  of  the  answer  purports  to  be  a  denial  of  all  the 
allegations  in  the  complaint  not  expressly  admitted.  The  re- 
maining part  of  the  answer  admits  but  a  few  of  the  material 
allegations  of  the  complaint.  If  the  portion  of  the  answer  in 
the  form  of  a  general  denial  is  good,  it  puts  at  issue  all  the  re- 
maining allegations  of  the  complaint  material  to  plaintiff's  right 
to  recover,  and  not  only  compels  the  plaintiff  to  prove  the  is- 
sues on  his  part,  but  permits  the  defendant  to  disprove  them; 
if  it  is  stricken  out,  the  defendant  is  deprived  of  his  right  to 
disprove  the  allegations,  and  they  are  taken  as  admitted  against 
him.  The  order  striking  out,  therefore,  goes  to  the  merits  of 
the  action,  and  is  appealable.  Starbuck  v.  Dunklee,  10  Minn. 
173  (Gil.  136). 

Upon  the  merits  of  the  motion  we  think  it  should  not  have 
been  granted. 

The  statute  provides  that  the  answer  shall  contain  (1)  a 
denial  of  each  allegation  of  the  complaint  controverted  by  the 
defendant,  or  of  any  knowledge  or  information  thereof  sufficient 
to  form  a  belief.    Gen.  St.  p.  460,  §  79.    The  statute  prescribes 

8  Dissenting    opinion    of    Wilson,  C.  J.,   omitted. 


Sec.  1.]  General  and  Specific  Denials.  477 

no  particular  form  of  denial,  nor  does  it  make  any  distinction 
between  general  and  specific  denials. 

The  suflficiency  of  a  general  denial,  where  it  puts  in  issue  the 
substance  of  the  allegations  to  which  it  is  addressed,  cannot  now 
be  questioned.  This  form  of  general  denial  has  been  in  general 
use  by  the  profession  since  the  adoption  of  the  Code,  and  has 
been  repeatedly  recognized  and  sustained  by  this  court.  Bond 
V.  Corbet,  2  Minn.  248  (Gil.  209)  ;  Caldwell  v.  Bruggerman,  4 
Minn.  270  (Gil.  190)  ;  Starbuck  v.  Dunklee,  10  Minn.  173  (Gil. 
136)  ;  Montour  v.  Purdy,  11  Minn.  401  (Gil.  278). 

The  certainty  required  in  pleading  is  that  the  allegation  must 
be  so  certain  and  explicit  as  to  exclude  ambiguity,  and  make  the 
meaning  of  the  averments  clearly  intelligible.  Gould,  PI.  c.  4, 
§  24,  p.  180. 

Any  language  in  an  answer,  therefore,  which  clearly  indicates 
the  allegations  which  the  pleader  intends  to  controvert,  and  de- 
nies with  certainty  the  substance  of  such  allegations,  is  sufficient. 

Tf  a  complaint  alleges  a  fact  which  is  qualified  by  a  particular 
intention,  or  by  its  connection  with  other  facts  alleged  in  the 
pleading  there  is  no  reason  why  the  simple  fact  may  not  be 
admitted,  and  the  qualifying  facts  or  circumstances  be  denied; 
nor  do  we  see  any  reason  why,  in  case  of  an  allegation  embrac- 
ing a  fact  and  a  qualifying  intention,  a  general  denial  of  the 
allegation,  except  as  afterwards  admitted,  followed  with  an  ex- 
press admission  of  the  simple  fact,  is  not  sufficient  to  put  in 
issue  the  intention  alleged,  and  is  not  sufficiently  definite  and 
certain.  If  the  legal  effect  of  express  statements  or  admissions 
is  to  qualify  or  deny  any  of  the  allegations  in  the  complaint,  it 
is  no  objection  to  the  answer  that  such  effect  is  not  expressly 
stated  in  the  answer.  The  answer  in  this  case  purports  to  deny 
each  and  every  allegation  in  the  complaint,  except  as  after- 
wards stated,  admitted,  or  qualified  in  the  answer.  If  there  is 
no  ambiguity  in  what  is  afterwards  stated,  admitted,  or  qualified 
in  the  subsequent  portion  of  the  answer,  the  pleading  is  suffi- 
ciently certain.  The  statements  and  admissions  in  the  answer 
are  express  and  unambiguous,  and  there  can  be  no  reasonable 
doubt  as  to  what  the  pleader  intended  to  state  and  admit. 

We  are  therefore  of  opinion  that  the  answer  is  sufficiently 


478  The  Answer.  [Chap.  Y. 

definite  and  certain  as  to  the  portions  of  the  complaint  which 
the  pleader  intended  to  controvert.® 

The  question  then  remains  whether  the  denial  in  the  answer 
is  sufficient  in  form  to  put  in  issue  the  portions  of  the  com- 
plaint whi'?h  it  purports  to  deny.  The  language  of  a  general 
denial,  considered  in  reference  to  the  allegation  it  purports  to 
deny,  may  be  such  as  to  be  a  denial  in  form  only,  and  not  in 
substance.  An  instance  of  this  kind  is  found  in  the  case  of 
Dean  v.  Leonard,  9  Minn.  190  (Gil.  176),  or  it  may  be  uncer- 
tain, as  in  Starbuck  v.  Dunklee,  10  Minn.  168  (Gil.  136).  But 
the  case  under  consideration  differs  from  these.  The  defendant 
in  this  case  "denies  each  and  every  statement  and  averment,  and 
very  part  of  the  same,  in  said  amended  complaint  as  therein 
stated  or  otherwise."  This,  we  think,  is  a  denial,  in  form  and 
substance,  of  the  allegations  controverted.  It  would  be  un- 
reasonable to  suppose  that  the  pleader  intended  to  deny  a  por- 
tion of  a  sentence  composing  an  allegation  in  the  complaint,  and 
the  only  reasonable  construction,  to  give  the  language  any  effect, 
is  that  he  intended  to  deny  everything  which  in  legal  effect  was 
embraced  in  the  allegation.  The  respondent  also  urges  that 
"the  denial,  when  coupled  with  the  words  immediately  preced- 
ing, is  bad.  The  defendant  shows  to  this  court,  and  states^"  that 
he  denies,"  etc.  We  italicize  the  word  "that"  for  our  own 
convenience.  Whether  the  principle  embraced  in  this  objection 
is  true  or  not,  we  need  not  determine.  The  language  of  this 
answer  is:  "The  separate  answer  of  said  defendant  *  *  * 
shows  to  this  court  and  states:  First,  the  said  defendant  de- 
nies," etc.  The  rule  contended  for  by  the  respondent  of  course 
would  not  be  applicable  here. 

The  order  granting  the  motion  to  strike  out  is  reversed. 

9  And    so    in    Burley   v.    German  denial  is  too  uncertain  to  raise  any 

Am.    Co.,    Ill    U.    S.    216,    (1884),  issue. 

under  N.  Y.   Code.     Such  a  denial  10  See  Wadleigh  v.  Marathon  Co., 

may  be  so  uncertain  as  to  be  open  58   Wis.   546,    (1883),   sustaining   a 

to  a  motion  to  make  more  specific,  denial  in  much  the  same  form,  and 

Long  V.  Long,  79  Mo.  644,   (1883).  so  in  Kirshbaum  v.  Eschman,  205 

But    see   Dezell   v.   FideUty   Co.,  N.  Y.  127,   (1912). 
176  Mo.  253,    (1903),  that   such  a 


Sec.  1.]  General  and  Specific  Denials.  479 

COLLART  V.  FISK. 

Supreme  Court  of  Wisconsin,  1875.    38  Wis.  238. 

The  action  is  to  forclose  a  mortgage  on  real  estate,  ex- 
ecuted by  the  defendant  Coppersmith  to  the  plaintiff,  to 
secure  the  payment  of  a  promissory  note  of  even  date  made 
by  the  former.  The  note  is  dated  June  23d,  1871,  and  is  for 
$200  payable  in  five  years,  with  interest  payable  annually.  The 
breach  of  condition  alleged  is  the  nonpayment  of  interest  for 
three  years.  The  complaint  contains  an  averment  that  the  de- 
fendants Cormier  and  Fisk  ''have  or  claim  to  have  some  interest 
in  or  lien  upon  the  said  mortgaged  premises  or  some  part  there- 
of, which  interest  or  lien,  if  any,  has  accrued  subsequently  to 
the  lien  of  the  said  mortgage. "  It  is  also  alleged  that  the  mort- 
gage was  duly  recorded  in  the  proper  office,  July  17th,  1871. 

The  defendant  Fish  answered  separately,  denying  "that  he 
has  any  knowledge  or  information  sufficient  to  form  a  belief 
that  any  allegation  of  said  complaint  is  true,  except  the  allega- 
tion that  this  defendant  has  or  claims  some  interest  in  or  lien 
upon  the  so  called  mortgaged  premises."  To  this  answer  the 
plaintiff  interposed  a  demurrer,  alleging  that  it  failed  to  state 
facts  sufficient  to  constitute  a  defense  or  counterclaim;  and  he 
appealed  from  an  order  overruling  the  demurrer. 

Lyon,  J.  On  the  authority  of  Hathaway  v.  Baldwin,  17  Wis. 
616,  it  must  be  held  that  the  answer  of  the  defendant  Fisk,  so 
far  as  it  relates  to  the  execution,  recording  and  ownership  of 
the  mortgage  described  in  the  complaint,  is  insufficient.  But  a 
defendant  who  is  a  subsequent  incumbrancer  may  litigate  the 
questions  as  to  whether  anything  is  due  on  the  debt  secured  by 
the  mortgage,  and  if  so,  how  much ;  and,  as  a  matter  of  course, 
he  may  deny  in  his  answer  that  anything  is  due,  or  that  there 
is  as  much  due  thereon  as  the  plaintiff  cl'^ims. 

The  reasons  why  such  subsequent  incumbrancer  may  not  deny 
the  execution  and  recording  of  the  mortgage  by  denial  of  knowl- 
edge or  information  thereof  sufficient  to  form  a  belief,  are,  that 
the  record  is  made  and  kept  for  the  purpose  of  giving  that 
information;  that  it  is  open  to  all,  and  constructive  notice  to 
all;  and  that  its  correctness  and  authenticity  are  to  be  pre- 
sumed. For  these  reasons  it  is  held  that  no  person  can  be  heard 
to  plead  ignorance  of  the  record  so  far  as  it  effects  his  own  title 


480 


The  Answek.  [Chap.  V. 


or  property.  But  these  reasons  do  not  apply  to  the  defense  that 
nothing  is  due,  or  that  less  than  the  plaintiff  claims  is  due  on 
the  mortgage  debt.  There  is  no  record  to  show  payments  there- 
on, and  a  subsequent  incumbrancer  has  no  constructive  notice 
on  the  subject.  Hence  no  good  reason  is  perceived  why  he  may 
not  deny  the  allegations  of  the  complaint  in  respect  to  the 
amount  due  on  the  mortgage  debt,  just  as  he  may  deny  any 
other  material  allegation  therein,  of  which  he  is  not  presumed 
to  have  knowledge  and  concerning  which  he  is  ignorant,  by  a 
denial  of  knowledge  or  information  thereof  sufficient  to  form 
a  belief.  The  cases  cited  by  the  learned  counsel  for  the  ap- 
pellant in  support  of  the  opposite  doctrine  have  been  examined, 
and  we  think  they  fail  to  sustain  the  position  of  counsel. 

We  conclude  that  the  answer  of  the  defendant  Fisk  contains 
a  sufficient  denial  that  there  has  been  any  breach  of  the  con- 
ditions of  the  mortgage,  and  that  the  demurrer  thereto  was 
properly  overruled.^ 

On  motion  for  rehearing — 

Lyon,  J.    The  principal  argument  of  the  learned  counsel  for 
the  appellant  in  support  of  his  motion  for  a  rehearing  is  based 
upon  the  proposition  that  an  answer  is  bad  which  purports  to 
be  a  defense  to  the  whole  cause  of  action  stated  in  the  complaint, 
but  which,  in  fact,  only  goes  to  a  part  of  the  cause  of  action. 
Hence,  it  is  claimed  that  the  answer  of  the  general  denial  in 
this  case,  in  the  form  in  which  such  denial  is  made,  not  being 
a  denial  of  the  averments  concerning  the  execution  and  record- 
ing of  the  plaintiff's  mortgage,  is  not  a  good  answer  to  any  other 
material  averment  in  the  complaint.     One  difficulty  with  the 
argument  is,  that  the  denial  that  any  sum  was  due  on  the  mort- 
gage at  the  commencement  of  the  action,  goes  to  the  whole  cause 
of  action,  and  not  merely  to  a  part  of  it,  and  hence  is  not  within 
the  rule  of  pleading  upon  which  the  counsel  relies.     The  fault 
in  the  argument  seems  to  be,  that  the  proper  distinction  is  not 
made  between  a  denial  of  part  of  a  cause  of  action,  and  a  denial 
of  a  portion  only  of  the  facts  stated  in  the  complaint,  the  aver- 
ments denied  being  essential,  however,  to  the  plaintiff's  right 
to  recover. 


1  And    so    in    Bennett    v.    Leeds       is  not   sufficient  to   raise  an  issue. 
Mfg.    Co.,   110   N.   T.    150,    (1888).       Manny     v.     Trench,     23     la.     250, 
But  a  denial  of  information  only        (1867). 


Sec.  1.]  General  and  Specific  Denials.  481 

We  do  not  care  to  enlarge  on  the  subject,  and  will  content 
ourselves  with  a  statement  of  the  rule  applicable  to  the  case. 
We  hold  that  the  general  denial  puts  in  issue  every  material 
averment  in  the  complaint,  which  may  be  denied  in  that  manner, 
although  there  may  be  other  material  averments  therein  not 
specifically  denied,  and  not  reached  by  the  general  denial.  San- 
ford  V.  McCreedy,  28  Wis.  103,  and  Ewen  v.  The  C.  &  N.  W. 
Ry.  Co.,  vide  post,  613,  are  illustrations  of  the  application  of 
this  rule.  It  is  not  perceived  that  the  cases  of  Babb  v.  Maekey, 
10  Wis.  371,  and  Fitzsimmons  v.  City  Fire  Ins.  Co.,  18  id.  234, 
conflict  with  this  rule.  The  question  as  to  the  effect  of  a  general 
denial  was  not  in  those  cases. 

We  are  of  the  opinion  that  the  answer  admits  that  the  de- 
fendant Fisk  is  a  subsequent  incumbrancer.  It  admits  (or, 
what  is  equivalent  thereto,  it  excepts  from  the  general  denial) 
the  allegation  that  Fisk  has  or  claims  an  interest  in  the  mort- 
gaged premises,  and  does  not  assert  that  such  interest  is  prior 
to  the  plaintiff's  mortgage.  We  understand  this  to  be  an  ad- 
mission of  the  whole  of  the  allegation,  that  is,  an  admission  that 
such  interest  is  subsequent  to  the  mortgage. 

Hathaway  v.  Baldwin,  17  Wis.  616,  is  not  in  conflict  with  the 
views  expressed  in  the  former  opinion.  In  that  case  the  court 
was  asked  to  exercise  its  discretion,  and  permit  the  defendants 
(who  were  subsequent  incumbrancers)  to  come  in  and  answer 
after  default.  The  answer  tendered  denied  (among  other  things) 
any  knowledge  or  information  sufficient  to  form  a  belifef  as  to 
the  truth  of  the  averment  in  the  complaint  of  the  amount  due 
on  the  mortgage.  This  seems  to  have  been  the  only  averment 
therein  which  the  proposed  answer  would  put  in  issue.  The 
opinion  does  not  refer  to  the  subject,  but  this  court  held,  in 
effect,  that  the  refusal  of  leave  to  interpose  such  answer  was  not 
an  abuse  of  discretion.  Doubtless,  the  case  Avas  correctly  de- 
cided.   •    *    • 

Motion  denied. 


482  The  Answer.  [Chap.  V. 

WAYLAND  V.  TYSEN. 

Court  of  Appeals  of  New  York,  1871.    45  N.  Y.  281. 

Appeal  from  an  order  of  the  General  Term  of  the  Supreme 
Court  in  the  second  judicial  district,  affii-ming  an  order  of  the 
Special  Term,  striking  out  an  answer  as  sham,  and  ordering 
judgment  for  the  plaintiff. 

The  answer  was  as  follows: 

The  defendant,  David  J.  Tysen,  denies  each  and  every  allega- 
tion in  the  complaint  of  the  above  plaintiffs  in  this  cause  con- 
tained.'' 

The  motion  to  strike  out  this  answer  as  sham  was  based  upon 
the  affidavits  of  the  plaintiffs  and  others  strongly  tending  to 
show  its  falsity. 

Grover,  J.     *     *     *     The  entire  answer  of  the  defendants 

was  struck  out.  It  was  a  general  denial  of  the  complaint.  It 
was  verified  by  the  defendant  before  service  in  the  manner  re- 
quired by  the  Code  when  the  complaint  is  verified.  The  motion 
to  strike  it  out  was  made  upon  affidavits  tending  to  show  its 
falsity,  and  the  court  arriving  at  this  conclusion,  made  the 
order  striking  it  out  as  sham.  The  Code  (§  152)  provides 
that  sham  and  irrelevant  answers  and  defenses  may  be  stricken 
out  on  motion,  and  upon  such  terms  as  the  court  may  in  their 
discretion  impose.  This  answer  is  the  equivalent  of  and  sub- 
stitute for  the  general  issue  under  the  common  law  system  of 
pleading.  It  gives  to  the  defendant  the  same  right  to  require 
the  plaintiff  to  establish  by  proof  all  the  material  facts  neces- 
sary to  show  his  right  to  a  recovery  as  was  given  by  that  plea. 
Under  the  common  law  system,  the  general  issue  could  not  be 
struck  out  as  sham,  although  shown  by  affidavits  to  be  false. 
(Broome  Co.  Bank  v.  Lewis,  18  Wend.  565.)  This  was  not  upon 
the  ground  that  a  false  plea  was  not  sham.  That  was  always 
so  regarded,  but  upon  the  ground  that  a  party  making  a  de- 
mand against  another  through  legal  proceedings  was  required  to 
show  his  right  by  common  law  evidence,  and  that  ex  parte  affi- 
davits were  not  such  evidence.  The  court,  under  that  system, 
exercised  the  power  of  striking  out  pleas  setting  up  affirmative 

2  The  caption  to  this  answer,  the  davit  verifying  the  same  have 
signature   of  counsel  and  the   affi-      been  omitted. 


Sec.  1.]  General  and  Specific  Denials.  483 

defenses  as  sham  when  shown  by  affidavits  to  be  false,  but  not 
where  the  party  verified  such  plea  by  affidavit.  (Stewart  v. 
Hotchkiss,  2  Coav.  634.)  It  has  been  claimed,  and  the  claim 
somewhat  sanctioned  by  the  Supreme  Court,  that  these  rules 
have  been  changed  by  section  152  of  the  code.  That  by  this  all 
distinctions  in  striking  out  answers  between  such  as  merely  deny 
the  allegations  of  the  complaint  either  generally  or  specifically, 
and  those  setting  up  affirmative  defenses,  have  been  abolished. 
This  question  must  be  regarded  as  original  in  this  court,  not- 
withstanding the  claim  that  this  construction  was  adopted  in 
The  People  v.  McCoraber  (18  N.  Y.  315).  A  close  examination 
of  this  case  shows  that  this  point  was  not  involved.  It  is  true 
that  an  opinion  sustaining  the  construction  contended  for  was 
given  by  Strong,  J. ;  but  the  case  shows  that  Judges  Denio  and 
Harris  dissented  from  this  opinion,  although  concurring  in  the 
affirmance  of  the  judgment  upon  the  ground  that  the  point  was 
not  involved.  This  case  cannot,  therefore,  be  regarded  as  an 
authority  for  the  construction  insisted  upon.  The  section  in 
question  simply  confers  power  upon  the  court  to  strike  out  sham 
and  irrelevant  answers  and  defenses.  This  power  the  court,  as 
we  have  seen,  possessed  and  exercised  under  the  pre-existing 
laws.  For  reasons  deemed  satisfactory  it  was  not  extended  to 
the  general  issue.  When  this  was  interposed  as  a  defense  the 
party  had  a  right  to  a  trial  by  jury.  This  right  is  secured  to 
him  by  section  2,  article  1,  of  the  Constitution.  This  right 
could  not  be  taken  away  by  simply  changing  the  name  from 
that  of  general  issue  to  that  of  general  denial.  We  have  seen 
that  the  latter  is  the  substance  for  and  the  equivalent  of  the 
former,  so  far  as  to  require  proof  by  the  plaintiff  of  all  the  ma- 
terial facts  showing  his  right  of  recovery.  This  is  an  argument 
tending  to  show  that  the  Legislature,  in  the  passage  of  the  sec- 
tion in  question,  only  intended  to  sanction  the  existing  practice, 
and  not  to  confer  any  new  power  upon  the  court. 

Under  the  construction  claimed,  there  is  nothing  to  prevent 
the  trial  of  this  or  any  other  issue  upon  affidavits.  The  moving 
party  has  only  to  satisfy  the  court  by  a  preponderance  of  evi- 
dence of  this  character  of  the  falsity  of  the  plea,  and  it  may  be 
struck  out,  although  specifically  verified  by  the  party  interpos- 
ing it,  notAvithstanding  such  party  may  insist  upon  his  right  to 
a  trial,  when  he  can  have  the  privilege  of  cross-examining  the 
affidavits,  and  having  their  credibility  passed  upon  by  a  jury. 


484 


The  Answer.  [Chap.  V. 


I  think  that  by  the  true  construction  of  the  section,  the  power 
of  the  court  to  strike  out  pleadings  was  not  extended  beyond 
what  it  was  under  the  pre-existing  law.    That  we  have  seen  ex- 
tended only  to  such  affirmative  defenses  as  were  not  verified  by 
the  oath  of  the  defendant  or  other  equivalent  evidence.     It  may 
be  said  that  a  motion  to  strike  out  a  pleading  is  not  the  trial  of 
an  issue  joined  thereby.    This  is  literally  true,  but  in  substance 
the  difference  is  scarcely  perceptible.     It  calls  for  a  determina- 
tion whether  the  pleading  be  true  or  false;  and  if  found  false 
and  struck  out,  the  defendant  is  as  effectually  deprived  of  any 
benefit  therefrom,  as  if  found  false  upon  a  verdict,  although  he 
can  derive  no  benefit  from  a  failure  to  find  it  false,  for  the  plain- 
tiff will  still  be  entitled  to  a  trial  of  the  issue.     It  will  thus  be 
seen  that  all  the  plaintiff  hazards  by  the  motion  is  the  costs, 
while  the  defendant  is  precluded  by  an  adverse  result.    It  may 
be  said  that  the  power  claimed  will  only  be  exercised  in  clear 
cases,  where  it  is  manifest  that  the  desire  of  the  defendant  is 
only  for  delay,  and  that  he  is  practicing  a  fraud  for  this  pur- 
pose by  putting  a  falsehood  upon  record.    Concede  the  construc- 
tion of  the  section  claimed  by  the  respondent,  as  we  must  to  sus- 
tain the  order,  and  its  exercise  cannot  be  confined  to  this  class 
of  cases.    The  judgment  of  the  court  must  be  exercised  upon  the 
affidavits,  and  if  satisfied  of  the  falsity  of  the  pleading,  although 
sustained  by  opposing  affidavits,  it  becomes  a  duty  so  to  decide 
by  granting  the  motion.     It  is  in  the  power  of  the  plaintiff,  in 
every  case,  as  was  done  in  this,  to  preclude  the  defendant  from 
interposing  either  a  general  denial  or  a  denial  of  specific  facts 
by  verifying  his  complaint.     Thus  he  can  prevent  such  answer, 
unless  from  the  affidavit  of  the  defendant  it  shall  appear  that  it 
was  interposed  in  good  faith.     The  Code,  it  is  true,  allows  the 
defendant  to  deny  any  know^ledge  or  information^  sufficient  to 
form  a  belief,  and  thus  put  the  fact  in  issue.    If  he  verifies  this, 
what  right  has  the  plaintiff  to  strike  out  his  answer  by  produc- 
ing affidavits  showing  the  truth  of  such  facts  of  which  the  de- 
fendant was  ignorant  at  the  time  of  putting  in  his  answer. 
Such  affidavits  fail  entirely  to  show  that  the  answer  was  put  in 

3  But   a  denial   of  knowledge   or  pleader    may    be    stricken    out    as 

information    sufficient    to    form    a  sham    or    frivolous,    Kirchbaum    v. 

beUef  as  to  matters  clearly  within  Eschman,  205  N.  Y.  129,   (1912). 
the     personal     knowledge     of     the 


Sec.  1.]  General  and  Specific  Denials.  485 

in  bad  faith,  or  that  it  was  false;  and  yet  this  is  the  very  class 
of  cases  where  the  court  will  be  most  frequently  called  upon  to 
strike  out  the  answer.  If  the  defendant  commits  perjury  in 
verifying  the  answer,  as  he  must  have  done  in  this  case,  if  he 
knew  the  allegations  of  the  complaint  were  true,  he  ought  to  be 
prosecuted  therefor.  If  plaintiffs,  who  complain  of  injury  from 
delay  by  the  fraudulent  interposition  of  false  answers,  would 
perform  the  duty  incumbent  upon  every  good  citizen,  to  pros- 
ecute those  known  to  be  guilty  of  perjury,  they  would  effectual- 
ly stop  such  an  abuse.  I  am  satisfied  that  the  intention  of  the 
Legislature  in  enacting  the  section  of  the  Code  under  considera- 
tion, was  not  to  confer  any  new  power  upon  the  court,  but  to 
give  legislative  sanction  to  that  exercised  under  the  existing 
law.  The  order  appealed  from  must  be  reversed,  and  an  order 
entered  denying  the  motion ;  but  as  the  practice  under  which 
it  was  made  had  the  sanction  of  some  reported  cases  in  the  Su- 
preme Court,  it  should  be  without  costs  to  either  party. 

Order  reversed. 


WALL  V.  BUFFALO  WATER  COMPANY. 

Court  of  Appeals  of  New  York,  1858.    18  N.  Y.  119. 

Roosevelt,  J.  The  water  company  are  sued  for  alleged  neg- 
ligence in  omitting  to  fence  in  or  light  a  street  excavation  in 
the  city  of  Buffalo,  in  consequence  of  which,  it  being  very  dark, 
the  plaintiff,  as  he  alleges,  fell  in  and  sustained  very  serious 
injury.  He  claimed  $5,000  damages.  A  verdict  was  found  in 
his  favor  for  $1,000,  and  judgment  rendered  for  that  amount, 
which  the  general  term  of  the  Buffalo  Superior  Court,  overrul- 
ing the  defendant's  exceptions,  affirmed. 

It  is  contended  by  the  company  that  on  the  evidence  the  injury 
sustained  might  have  arisen  from  other  causes,  and  that  there  was 
no  proof  that  the  plaintiff,  whatever  might  have  been  his  injuries, 
fell  into  the  ditch  which  the  Water  Works  Company  had  dug. 
This  objection  was  met  at  the  trial,  and  so  the  judge  decided, 
by  the  position  taken  by  the  plaintiff's  counsel,  that  the  plead- 
ings admitted  the  fact  of  falling  into  the  ditch.  A  nonsuit  was 
denied  on  that  ground,  and  the  ruling  to  that  effect  governed 


486  The  Answer.  [Chap.  V. 

all  the  subsequent  proceedings.  It  was  duly  excepted  to  at  the 
proper  stage  of  the  trial,  and  the  defendants  had  a  right  to  the 
benefit  of  the  exception  without  repeating  it  at  every  step.  And 
as  the  whole  trial  was  conducted  afterwards  upon  the  assumed 
admission,  the  verdict  of  course  must  be  set  aside  if  that  as- 
sumption was  erroneous. 

No  express  admission  is  pretended.  But  the  Code,  it  is  said, 
declares  (§  168)  that  every  material  allegation  of  the  complaint, 
not  controverted  by  the  answer,  "shall,  for  the  purposes  of  the 
action,  be  taken  as  true."  Now  the  complaint  expressly  avers, 
not  only  that  the  plaintiff  fell  into  the  ditch,  but  that  he  fell 
into  it  in  consequence  of  the  company's  negligence  in  omitting 
to  place  any  light,  fence,  or  other  protection  to  guard  against 
accident.  The  answer  denies  that  the  ditch  was  left  unguarded, 
"so  that  persons  using  reasonable  care"  would  fall  into  it;  in 
other  words,  it  distinctly  controverts  the  charge  of  negligence. 
It  then  proceeds  with  a  further  denial  "that  the  plaintiff,  with- 
out any  fault  or  Avant  of  care  on  his  part,*  did  fall  therein." 
And  the  question  is,  does  this  averment  put  in  issue  the  plain- 
tiff's want  of  negligence,  or  the  plaintiff's  falling  into  the  ditch, 
or  both. 

The  denial  as  to  the  falling  into  the  ditch,  it  must  be  con- 
ceded, is  not  very  specific ;  and  under  the  Code,  as  it  stood  orig- 
inally, would  probably  have  been  pronounced  insufficient.  "A 
specific  denial  of  every  allegation  of  the  complaint"  was  then 
required  (§§  149,  169),  and  every  allegation,  "if  not  contro- 
verted as  prescribed,"  it  was  declared,  should  be  "taken  as 
true."  In  1852,  however,  the  words  "not  specially  contro- 
verted" were  superseded  by  the  words  "not  controverted,"  and 
the  words  "specific  denial"  by  the  words  "general  or  specific 
denial."  The  present  action  was  commenced  in  1855.  The  an- 
swer, therefore,  is  to  be  governed  by  the  amended  Code.  And 
as  it  contains  a  "general  denial"  of  the  plaintiff's  allegation  of 
his  having  fallen  into  the  ditch  in  the  manner  described,  that 

4  The     complaint      alleged     that  part    is    an    essential    part    of    his 

plaintiff  "fell  into  said  ditch,  etc.  case,  an  express  allegation  to  that 

without  any  fault  or  want  of  care  effect   is   unnecessary,   see   note   to 

on  his   part."  Potter    v.   Ey.,   20   Wis.   533,   ante 

"While  in  New  York  lack  of  eon-  p.   342. 
tributory   fault   on   the    plaintiff's 


Sec.  1.]  Gener.Mi  and  Specific  Denials.  487 

aUegation  in  all  its  parts,  "for  the  purposes  of  the  action," 
must  be  deemed  to  have  been  "controverted." 

We  consider  the  answer,  notwithstanding,  as  open  to  criticism. 
It  is  a  species  of  negative  pregnant.  But  the  plaintiff,  if  dis- 
Scatisfied  with  the  vagueness  and  uncertainty  of  the  pleading, 
had  his  remedy  by  motion.  Not  having  applied,  at  the  proper 
time,  for  an  order  to  compel  the  defendants  to  be  "more  definite 
and  certain, "  he  is  presumed  to  have  been  satisfied  with  the 
pleading  as  it  stood,  especially  as  he  knew  that,  under  the  pres- 
ent sj-stem,  it  was  made  "the  duty  of  the  court  to  construe 
pleadings  liberally,"  and  of  course  not  to  assume  that  parties, 
by  implication,  intended  to  admit  when  they  could  safely  deny 
their  adversary's  case. 

The  point  has  been  decided  in  this  court,  in  a  case  which  has 
not  been  reported  here.  At  the  March  term,  1855,  it  had  under 
review  the  action  of  Lawrence  v.  "Williams,  upon  an  appeal  from 
a  judgment  of  the  Superior  Court  of  the  city  of  New  York, 
which  is  reported  in  1  Duer  585.  It  was  an  action  in  the  nature 
of  ejectment,  to  recover  the  possession  of  certain  premises  which 
had  been  demised  to  the  defendant,  on  the  ground  that  he  had 
broken  the  covenant  not  to  underlet  withoiit  the  consent  of 
the  lessor.  The  defendant  answered,  denying  that  "in  violation 
of  the  said  covenant,  and  without  the  consent  of  said  plaintiff, 
he  had  underlet  the  said  premises."  On  the  trial  the  plaintiff 
gave  in  evidence  the  lease  containing  the  covenant  not  to  under- 
let, and  a  general  clause  of  reentry,  and  rested.  The  plaintiff 
had  a  verdict  on  the  ground  that  the  answer  did  not  deny  the 
fact  of  underletting,  and  the  judgment  was  affirmed  at  a  general 
term.  The  court  held  that  the  answer  admitted  the  underlet- 
ting, and  that  it  took  issue  merely  upon  the  allegation  that  such 
underletting  was  without  the  consent  of  the  plaintiff.  On  the  ap- 
peal here,  this  court  reversed  the  judgment.  The  opinion  which 
prevailed  was  prepared  by  Gardner,  then  Chief  Judge.  It  has 
not  been  furnished  to  the  ireporter;  but,  on  inquiry  of  that  of- 
ficer, I  find  that  he  entered  in  his  minutes  the  conclusion  to 
which  the  court  arrived,  as  follows :  ' '  The  plaintiff  should  have 
proved  the  underletting.  The  answer,  although  it  contains  a 
negative  pregnant,  puts  in  issue  the  subletting."     The  ease  is 


488 


The  Answer. 


[Chap.  V. 


in  principle  precisely  like  the  present,  and  must  determine  the 
judgment  we  have  now  to  render.^ 

The  judgment  of  the  Supreme  Court  must  be  reversed  and 
a  new  trial  awarded. 

Denio,  J.  (dissenting.)  To  maintain  the  action,  it  was  nec- 
essary for  the  plaintiff  to  aver  and  prove  that  he  fell  into  the 
excavation  which  the  defendant  had  made  in  the  street,  and  it 
was  also  essential  that  the  facts  should  show  that  he  was  not 
himself  chargeable  with  negligence  or  any  want  of  proper  care. 
Both  particulars  are  alleged  in  the  complaint  in  separate  prop- 
ositions. The  defendant  had  a  right  to  deny  the  matters  stated 
in  the  complaint  generally  or  specifically.  (Code,  §  149.)  If 
any  material  allegations  of  the  complaint  was  left  uncontro- 
verted  in  the  answer,  it  was  to  be  taken  as  true.  (§  168.)  If 
the  plaintiff  verifies  the  complaint  by  his  oath,  the  defendant 
must  verify  the  answer  in  the  same  way.  (§§  156,  157.)  Under 
the  permission  to  put  in  a  general  denial,  the  defendant  might 
have  answered  in  a  way  which  would  be  equivalent  to  the  for- 


B  Compare  Maxwell,  J.,  in  Har- 
den V.  A.  &  N.  R.  R.  Co.,  4  Neb. 
521,    (1876):      »      *      * 

' '  Without  considering  the  admis- 
sions contained  in  the  answer,  is 
there  any  denial  therein,  that  the 
injury  complained  of  was  com- 
mitted by  the  defendant?  We 
think  not.  It  is  denied  that  the 
"defendant  negligently,  carelessly, 
and  wantonly  ran  its  engine  or 
locomotive  and  train  of  cars  over, 
or  against  the  said  mare  of  the 
said  plaintiff,"  but  this  is  a  mere 
denial  of  negligence  on  the  part 
of  the  defendant,  and  not  a  denial 
that  the  defendant  occasioned  the 
injury  complained  of.  "A  defend- 
ant must  answer  the  charge  di- 
rectly, without  evasion,  and  not  by 
way  of  negative  pregnant. ' '  1  Van- 
santvoords,  Eq.,  204.  Moaks  Van 
Sant,  PI.,  814.  Baker  v.  Bailey, 
16  Barb.,  56;  Fish  v.  Redington, 
31  Cal.,  194;  Robbins  v.  Lincoln, 
12  Wis.,  8.     A  denial  must  be   di- 


rect and  unambiguous,  and  must 
answer  the  substance  of  each  di- 
rect charge;  and  such  facts  as  are 
not  denied  by  the  answer  for  the 
purposes  of  the  action,  are  to  be 
taken  as  true.  This  requirement 
of  the  statute  is  not  designed  to 
prevent  the  defendant  from  deny- 
ing such  facts  in  the  petition,  as 
he  believes  to  be  untrue,  but  to 
prevent  the  introduction  of  ficti- 
tious issues;  and  while  denials 
must  be  positive  and  direct,  the 
verification  need  only  be,  that  the 
defendant  believes  the  facts  stated 
in  the  answer  to  be  true. 

There  being  no  denial  in  the  an- 
swer that  the  defendant  committed 
the  injuries  complained  of,  no 
proof  of  those  facts  was  required. 
The  court  therefore  erred  in  in- 
structing the  jury  to  find  for  the 
defendant."  And  so  in  Terley  v. 
Shirley,  43  Cal.  369,  (1870);  Har- 
ris V.  Shontz,  1  Mont.  212,  (1870). 


Sec.  1.]  General  and  Specific  Denials.    '  489 

mer  plea  of  the  general  issue,  if  he  could  swear  to  such  a  de- 
fense; but  because  this  could  not  be  safely  done,  or  for  some 
other  reason,  the  defendant  in  this  case  undertook  to  answer 
specifically.  It  was,  therefore,  necessary  for  the  defendant  to 
answer  whether  the  averment  that  the  plaintiff  had  fallen  into 
the  ditch  was  true  or  to  deny  sufficient  knowledge  or  informa- 
tion upon  that  point  to  form  a  belief.  (§  149.)  No  want  of 
knowledge  or  information  is  stated  in  the  answer,  and  if  the 
defendant  has  failed  to  deny  this  allegation,  it  is  left  uncon- 
troverted.  The  answer  avers  that  the  plaintiff  did  not  fall  in 
without  fault  or  want  of  care  on  his  part.  This  is  not  a  denial 
that  he  did  fall  in.  It  is  an  implied  admission  that  he  did,  but 
that  it  was  not  done  under  the  circumstances  alleged.  But  it  is 
enough  for  the  plaintiff's  purpose  that  it  is  not  a  denial.  To 
show  it  is  not  a  denial  of  the  precise  fact  which  the  defendant 
was  called  upon  to  answer,  let  us  suppose  that  the  action  was 
against  a  natural  person  who  happened  to  be  present  at  the 
accident  which  befell  the  plaintiff ;  and  suppose,  further,  that 
the  case  was  such  that  he  might  well  have  entertained  the  belief 
that  the  plaintiff  was  wanting  in  circumspection.  The  plaintiff, 
desirous  of  availing  himself  of  the  defendant's  admission  of 
the  principal  fact,  and  being,  we  wiU  suppose,  unable  to  prove 
it  in  any  other  way,  swears  to  a  complaint  containing  the  al- 
legations in  the  one  before  us.  The  defendant  might  put  in  and 
swear  to  the  answers  contained  in  this  record,  without  making 
the  admission  required,  and  without  exposing  himself  to  be  ques- 
tioned for  perjury.  If  indicted  for  falsely  swearing  that  the 
plaintiff  did  not  fall  into  the  excavation,  when  in  truth  he  saw 
him  so  fall  with  his  own  eyes,  he  could  say  with  perfect  truth 
that  he  did  not  swear  to  the  contrary ;  that  he  did  not,  on  oath, 
deny  the  general  fact  of  his  falling  in  at  all,  but  that  by  a  strong 
implication  he  admitted  it. 

But  it  is  said  the  plaintiff  should  have  moved  to  compel  the 
defendant  to  make  his  pleading  more  definite  and  certain,  by 
amendment,  according  to  §  160.  This  depends  upon  the  consid- 
eration whether  the  answer  as  it  stands  is,  in  any  respect,  indefi- 
nite or  uncertain.  I  think  it  is  neither.  The  defendant  had 
a  clear  right  to  waive  any  controversy  respecting  the  simple 
fact  of  the  plaintiff's  fall,  and  to  limit  the  issue  to  the  question 
whether  he  was  at  the  time  in  the  exercise  of  proper  care.  This 
he  has  done  in  language  quite  appropriate  to  set  forth  that  line 


490  The  Answer.  [Chap.  V. 

of  defense.  It  may  very  well  be  that  those  concerned  in  de- 
fending the  action  misunderstood  the  effect  of  the  answer.  If 
so,  it  was  for  the  defendant  to  ask  leave  to  amend  it  upon  terms. 
The  plaintiff  is  not  to  be  charged  with  laches,  because  he  under- 
stood it  correctly  and  acted  upon  that  understanding. 

It  is  essential  to  apply  to  pleadings,  under  the  Code,  the  com- 
mon principles  of  literary  interpretation.  The  disuse  of  estab- 
lished forms  and  technical  language  has  led  to  much  vagueness 
and  uncertainty.  But  pleadings  are  still,  in  terms,  required  to 
be  in  ordinary  and  concise  language.  To  secure  a  compliance 
with  this  direction,  we  must  apply  to  their  construction  the 
usual  principles  of  criticism.  Conformably  with  these  prin- 
ciples, it  is  impossible  to  say  that  a  denial  that  a  person  did  a 
thing  under  particular  circumstances  is  a  denial  that  he  did  it 
at  all.     I  am,  therefore,  in  favor  of  the  affirmance. 

Judgment  reversed. 


LEFFINGWELL  v.  GRIFFING. 

Supreme  Court  of  Calif orriia,  1866.    31  Cal.  232. 

Plaintiff  recovered  judgment  in  the  court  below,  and  defend- 
ant appealed  from  the  judgment  and  from  an  order  denying  a 
new  trial. 

Shafter,  J.  The  complaint  is  in  two  counts.  The  first  count 
alleges  that  the  defendant  promised  the  plaintiff  if  he  would 
find  a  purchaser  for  certain  real  estate  in  San  Francisco,  that 
the  defendant  would  pay  the  plaintiff  for  his  services  the  excess 
of  the  purchase  money  over  and  above  the  sum  of  sixty-two 
thousand  dollars;  that  the  plaintiff  procured  F.  H.  Waterman 
to  buy  at  sixty-five  thousand  dollars,  which  sum  the  defendant 
had  actually  received. 

The  second  count  is  for  three  thousand  dollars,  as  so  much 
money  had  and  received  by  the  defendant  to  the  plaintiff's  use. 
No  allusion  is  made  to  Waterman  or  the  purchase  money  paid 
by  him,  or  to  the  sixty-five  thousand  dollars,  or  to  any  feature 
of  the  special  contract.  The  count  is,  in  short,  for  money  had 
and  received,  in  the  most  general  form.  No  bill  of  particulars 
was  asked  for,  nor  was  any  filed. 


Sec.  1.]  General  and  Specific  Denials.  491 

Issue  was  well  taken  on  the  first  count,  but  to  the  second 
count,  there  was  no  response.  The  only  passage  in  the  answer 
that  can  be  claimed  to  have  any  reference  to  that  count  is  this : 
"He  denies  that  he  received  three  thousand  dollars  in  gold  coin, 
parcel  of  the  sixty-five  thousand  dollars,  to  and  for  the  use  of 
the  plaintiff. ' '  This  denial  is  bad  for  two  reasons :  First,  The 
count  does  not  charge  that  the  three  thousand  dollars  sued  for 
was  parcel  of  the  sixty-five  thousand  dollars,  or  of  any  other 
sum,  but  three  thousand  dollars,  absolutely  and  without  clog.^ 
The  traverse  is,  therefore,  pregnant  with  an  admission  that 
three  thousand  dollars  had  been  received  as  charged — that  is, 
three  thousand  dollars  disconnected  from  the  circumstances 
named  in  the  denial,  and  spoiling  its  pith.  Second,  the  traverse 
is  vitiated  for  another  but  kindred  reason.  The  denial  is  that 
the  three  thousand  dollars  was  received  in  gold  coin.  That  in- 
volves an  admission  that  three  thousand  dollars  was  received  in 
either  one  of  the  two  other  forms  of  lawful  money,  and  therein 
it  denies  what  was  non-essential  and  admits  all  that  was  essen- 
tial to  a  recovery.''^ 

Judgment  affirmed. 


SCHAETZEL  v.  GERMANTOWN  INS.  CO. 

Supreme  Court  of  Wisconsin,  1868.    22  Wis.  412. 

Action  on  a  policy  of  insurance.  After  judgment  against  de- 
fendant by  default,  it  obtained  an  order  setting  aside  the  judg- 
ment and  granting  leave  to  file  an  answer ;  the  plaintiff  appeals 
from  the  order.  The  character  of  the  answer  proposed  will  suf- 
ficiently appear  from  the  opinion. 

Paine.  J.  If  the  answer  which  the  defendant  asked  leave  to 
file,  set  forth  any  defense  or  presented  any  material  issue,  we 
should  not  reverse  the  order  allowing  it  to  be  filed.    For,  what- 

6  That  a  denial  of  an  essential  tive  pregnant  resulting  from  a 
fact  omitted  from  the  complaint  denial  in  the  conjunctive  instead 
does  not  aid  the  complaint,  see  of  in  the  disjunctive,  see  White 
Seofield  v.  Whitelegge,  49  N.  Y.  v.  East  Side  MiU,  81  Ore.  107, 
259,    (1872),   ante   p.   276.  (1916). 

7  For  an  illustration  of  a  nega- 


492  The  Answer.  [Chap.  V. 

ever  might  be  our  conclusions  upon  the  weight  of  the  testimony 
presented  by  the  affidavits,  we  could  not  say  there  was  such  an 
abuse  of  discretion  as  to  justify  reversing  an  order  of  this  char- 
acter. 

But  the  answer  states  no  defense,  and  offers  no  material  issue. 
The  denials  are  all  liable  to  the  objection  that  they  are  negatives 
pregnant.  The  complaint  avers  that  on  a  particular  day  the 
property  was  all  destroyed  by  fire.  The  answer  denies  this  in 
the  very  words  of  the  complaint.  Such  a  denial  is  a  negative 
pregnant  with  the  admission  that  it  may  have  been  all  destroyed 
on  some  other  day;  or  that  a  part  may  have  been  destroyed  on 
the  day  named.  Such  denials  have  been  always  held  insuffi- 
cient. Baker  and  others  v.  Bailey,  16  Barb.  54;  Salinger  v. 
Lusk,  7  How.  Pr.  430;  Davison  v.  Powell,  16  id.  467.  Many 
other  authorities  to  the  same  effect  might  be  cited.' 

The  denial  that  an  action  had  accrued  to  the  plaintiff,  is  a 
denial  of  a  mere  legal  conclusion,  and  tenders  no  material  issue. 
The  denial  of  sufficient  knowledge  or  information  to  form  a 
belief  as  to  the  alleged  loss  by  fire,  is  not  sufficient  after  the 
answer  has  impliedly  admitted  that  the  proofs  of  loss  were  fur- 
nished as  the  policy  required.  This  is  impliedly  admitted,  be- 
cause the  denial  is  only  that  the  conditions  of  the  policy  were 
complied  with  in  that  respect  "as  stated  in  the  complaint." 
The  complaint  alleges  that  the  proofs  of  loss  were  filed  with  the 
secretary  of  the  company  on  the  31st  day  of  March,  1866.  The 
denial  is  therefore  only  that  they  were  filed  on  that  day,  which, 
in  accordance  with  the  rule  above  stated,  is  pregnant  with  the  ad- 
mission that  they  were  filed  on  some  other  day,  within  the  time 
required.  Where,  then,  an  answer  must  be  taken  to  admit  that 
the  proofs  of  loss  were  furnished  as  the  policy  required,  a  denial 
of  sufficient  knowledge  or  information  to  form  a  belief  as  to 
loss,  ought  not  to  be  held  to  put  it  in  issue.  It  appears  on  the 
very  face  of  the  answer,  in  such  case,  that  they  had  the  in- 
formation. 

The  policy  contained  a  provision  to  the  effect  that  it  should 

8  Ace.  Hanson  v.  Lehman  18  Neb.  tion    is    material,    as    the    date    or 

564,  (1886),  time;  Bobbins  v.  Lin-  language  of  a  written  instrument, 

coin,    12   Wis.    1,    (1860),    amount;  a   denial   in   the   precise   words    of 

Lynd     v.     Picket,     7     Minn.     184,  the    instrument    is    sufficient,    Hig- 

(1882),   value.  gins     v.     Graham,     143     Cal.     131, 

But   where   a   descriptive   allega-  (1904). 


Sec.  1.]  General  and  Specific  Denials.  493 

cease  in  case  the  assured  should  make  any  other  insurance  on 
the  property  without  the  written  consent  of  the  company,  en- 
dorsed on  the  policy  "or  otherwise  acknowledged  by  them  in 
writing."  The  answer  attempts  to  set  forth  a  violation  of  this 
provision  by  one  of  the  former  owners  of  the  property  and  pol- 
icy. But  it  is  clearly  defective  in  substance.  It  alleges  that 
such  other  insurance  was  effected  "without  the  written  consent 
of  the  said  Germantown  Farmers'  Mutual  Insurance  Company, 
the  defendant  herein,  endorsed  upon  the  said  policy  of  insurance, 
in  said  complaint  set  forth,  or  otherwise  acknowledged  by  the 
said  last  mentioned  company,  in  writing  07i  said  policy  of  insur- 
ance/' It  is  obvious  from  the  provision  of  the  policy,  that  the 
consent  would  be  perfectly  good,  if  made  in  writing,  whether 
on  the  policy  or  any  other  separate  paper.  Yet  the  answer  only 
avers  a  failure  to  give  consent  in  writing  on  the  policy.  This 
is  also  a  negative  pregnant  with  the  admission  that  the  consent 
may  have  been  given  in  writing  on  a  separate  paper,  and  fails 
to  show  any  forfeiture. 

The  suggestion  of  counsel  that  the  words  "on  said  policy  of 
insurance"  could  be  rejected  as  surplusage,  is  wholly  inadmis- 
sible. Those  words  limit  and  qualify  the  allegation  in  the  most 
material  manner.  To  reject  them  enlarges  its  meaning,  and 
makes  it  say  what  now  it  does  not  say.  The  court  cannot  take 
such  liberties  with  the  deliberate  statements  in  pleadings. 

For  these  reasons,  the  order  appealed  from  must  be  reversed. 
But  as  it  is  possible  that  the  defendant  may  amend  the  answer 
consistently  with  the  facts,  it  will  be  reversed  without  prejudice 
to  a  new  application,  if  the  party  should  desire  to  make  one. 

Ordered  accordingly. 


ELECTRICAL  ACCESSORIES  CO.  v.  MITTENTHAL. 

Court  of  Appeals  of  New  York,  1909.    194  N.  Y.  473. 

HiscocK,  J.  The  answer  of  the  appellants,  consisting  of  de- 
nials, seems  to  have  been  stricken  out  as  frivolous  at  the  Special 
Term  upon  one  or  perhaps  both  of  two  theories.  One  of  these 
was  that  the  denials  relied  on  wei-e  subject  to  the  vice  of  being 
or  containing  a  negative  pregnant,  and  the  other  one  was  tliat 


494  The  Answer.  [Chap.  V. 

the  allegations  of  the  complaint  which  the  answer  purported  to 
deny  were  not  material  to  respondent's  recovery,  and  that, 
therefore,  no  sufficient  issue  was  raised. 

We  think  that  the  order  appealed  from  cannot  be  sustained 
on  either  theory,  and  must  be  reversed. 

The  respondent  brought  this  action  to  recover  one  thou£;and 
dollars,  part  consideration  for  the  assignment  and  transfer  to 
the  appellants  of  certain  rights  in  and  to  an  invention  for  im- 
provements in  portable  electric  fountains  and  under  letters  pat- 
ent gi-anted  therefor.  One  thousand  dollars  was  paid  on  the 
assignment,  and  the  balance  of  four  thousand  dollars,  as  alleged 
in  the  complaint,  was  to  be  paid  "by  the  payment  of  five  per 
cent  upon  the  gross  sales  of  said  fountains  until  full  amount  of 
four  thousand  ($4,000)  dollars  shall  have  been  paid."  Then 
followed  the  allegations  which  are  important  on  this  appeal  and 
which  were  as  follows:  "Upon  information  and  belief  that 
large  numbers  of  said  fountains  have  been  sold  (meaning  by 
defendants,)  the  exact  amount  of  which  sales  plaintiff  is  unable 
to  state,  but  plaintiff  alleges,  upon  information  and  belief,  that 
between  the  date  of  said  assignment  and  the  25th  day  of  May, 
1908,  the  gross  sales  of  said  fountains  amounted  to  no  less  than 
Twenty  Thousand  ($20,000)  Dollars."  And  then  in  paragraph 
VI  followed  a  prayer  for  judgment  of  one  thousand  dollars, 
being  five  per  cent  upon  said  gross  sales. 

The  answer,  for  its  only  important  denial,  being  the  one 
under  consideration,  "denies  each  and  every  allegation  con- 
tained in  paragraphs  V  and  VI  of  the  plaintiff's  complaint 
herein." 

The  allegations  in  paragraph  V  of  the  complaint  which  ap- 
pellants denied  were  material  ones.  They  did  not  state  a  mere 
conclusion  of  the  amount  due  to  the  respondent,  that  being  con- 
tained in  the  following  paragraph.  They  stated  a  fact  the  ex- 
istence of  which  was  clearly  a  condition  precedent  to  any  right 
of  recovery,  namely,  that  appellants,  being  bound  to  pay  five 
per  cent  upon  their  gross  sales  of  fountains,  had  sold  a  certain 
number  thereof,  and  that,  therefore,  their  obligation  had  at- 
tached and  respondent  was  entitled  to  recover.  Therefore,  the 
denial  of  these  allegations,  if  sufficient  in  form,  raised  a  material 
issue,  and  on  this  point  the  decision  below  was  clearly  wrong. 

The   denials  employed  by  the   appellants   wert;  sufficient  in 


Sec.  1.]  Gener.vl  and  Specific  Denials.  495 

form,  and  were  not  subject  to  the  criticism  of  embodying  a  neg- 
ative pregnant. 

A  negative  pregnant  has  been  defined  by  Pomeroy  in  his 
treatise,  Pomeroy 's  Code  Remedies,  section  618,  as  a  denial 
"pregnant  with  an  admission  of  the  substantial  fact  which  is  ap- 
parently controverted;  or,  in  other  words,  one  which,  although 
in  the  form  of  a  traverse,  really  admits  the  important  fact  con- 
tained in  the  allegation."  A  careful  inspection  of  the  allega- 
tions of  the  complaint  shows  that  appellants'  denial  was  not  in 
the  form  thus  described.  Respondent's  complaint  at  the  point 
in  question  really  contained  two  allegations.  It  alleged  that 
appellants  had  sold  "large  numbers  of  fountains,  *  *  *  the 
exact  number  of  which  sales  plaintiff  is  unable  to  state,"  and 
then  it  further  alleged  upon  information  and  belief  that  be- 
tween certain  dates  the  gross  sales  of  said  fountains  amounted 
to  not  less  than  a  certain  amount,  which  was  equivalent  to  say- 
ing that  they  were  equal  to  a  certain  amount. 

The  Code  of  Civil  Procedure  authorized  appellants  to  make 
"a  general  or  specific  denial  of  each  material  allegation  of  the 
complaint  controverted  by  the  defendant"  (Section  500),  and 
accordingly  they  did  deny  "each  and  every  allegation"  above 
quoted.  We  utterly  fail  to  see  how  this  denial  was  "pregnant 
with  an  admission  of  a  substantial  fact,"  or  how  it  "really  ad- 
mits the  important  fact  contained  in  the  allegation."  It  denied, 
first,  that  defendants  had  sold  large  quantities  of  the  fountains 
and  then  it  also  denied  that  the  amount  of  such  sales  was  not 
less  than,  that  is,  equal  to,  a  certain  amount.  These  denials 
compelled  the  respondent  to  prove  its  allegations. 

If  this  answer  really  was  in  any  respect  vague  or  uncertain 
the  respondent  had  the  right  to  compel  a  correction  thereof  by 
proper  preliminary  motion,  and  having  failed  to  make  this  the 
answer  is  to  be  construed  most  strongly  against  it.  (Stuber  v. 
McEntee,  142  N.  Y.  200,  206 ;  Wall  v.  Buffalo  Water  Works  Co., 
18  N.  Y.  119.) 

The  orders  of  the  courts  below  should  be  reversed,  with  costs 
in  all  courts,  the  motion  to  strike  out  the  answer  and  for  judg- 
ment denied,  with  costs,  and  the  question  certified  to  us  an- 
swered in  the  affirmative. 

Ordered  accordingly. 


496  The  Answer,  [Chap.  V. 

LOEB  V.  WEIS. 

Supreme  Court  of  Indiana,  1878.    64  Ind.  285. 

Perkins,  J.^  John  M.  Weis  &  Co.  were  a  mercantile  firm, 
largely  indebted.  Said  firm  sold  and  transferred  to  Elias  Weis 
their  entire  stock  of  goods,  notes,  and  accounts;  and,  in  consid- 
eration of  such  sale  and  delivery,  said  Elias  Weis  promised  the 
said  John  M.  Weis  &  Co.,  by  their  firm  name,  to  pay  to  the  cred- 
itors of  said  firm  all  claims  and  demands  existing  against  it. 

Said  Weis  &  Co.  owed  Loeb  et  al.,  the  appellants,  the  sum  of 
three  hundred  and  thirty-seven  dollars  and  eighty-five  cents, 
which  they  demanded  of  Elias  Weis,  and  which  he  failed  to 
pay,  etc. 

This  suit  is  by  said  appellants,  against  said  appellee,  on  his 
promise  to  Weis  &  Co.  to  pay  their  creditors.  The  complaint 
states  a  cause  of  action.  Miller  v.  Billingsly,  41  Ind.  489,  and 
cases  cited ;  Haggerty  v.  Johnston,  48  Ind.  41 ;  See  Crim  v. 
Fitch,  53  Ind.  214. 

Answer  in  three  paragraphs:  1.  General  denial;  2.  Pay- 
ment by  Weis  &  Co.,  the  original  debtors;  and,  3.  "That  the 
goods,  notes  and  accounts,  etc.,  alleged  in  this  complaint  to  have 
been  sold  by  said  John  M.  Weis  &  Co.  to  defendant,  were  trans- 
ferred and  delivered  to  him  to  be  disposed  of  as  follows,  to-wit : 
for  the  purpose  of  being  appropriated  by  defendant  to  the  pay- 
ment, so  far  as  they  might  go,  of  the  debts  which  had  been  con- 
tracted by  a  prior  firm,  composed  of  said  John  M.  Weis  and 
Horace  Case,  one  William  R.  Kennedy  having  succeeded  to  the 
rights  and  liabilities  of  said  Case.    *    *    * 

Demurrer  to  the  third  paragraph  of  answer  for  want  of  facts 
overruled,  and  exceptions  entered. 

We  briefiy  notice  the  question  presented. 

The  court  did  not  err  in  overruling  the  demurrer  to  the  third 
paragraph  of  answer.  The  suit  was  upon  an  alleged  promise  to 
do  a  certain  thing.  On  proof  of  substantially  such  a  promise, 
the  plaintiff's  right  of  recovery  depended. 

The  third  paragraph  of  the  answer  averred  that  the  promise, 
on  the  occasion  alleged  in  the  complaint,  was  entirely  different 
in  its  terms  from  what  the  complaint  alleged  it  to  be,  setting 

9  Part  of  the  opinion  omitted. 


Sec.  1.]  General  and  Specific  Denials.  497 

out  those  terms.  This  was  an  argumentative  denial  of  the  prom- 
ise alleged  in  the  complaint.  The  matter  alleged  could  have 
been  given  in  evidence,  under  the  general  denial.  Still  the  para- 
graph of  the  answer  contained  facts  constituting  a  defense  to 
the  action;  and,  while  the  party  might  have  been  permitted 
to  give  them  in  evidence  under  the  general  denial,  which  was 
pleaded,  yet  he  had  a  right  to  plead  the  facts  specially,  and, 
having  done  so,  it  w^as  not  error  in  the  court  below  to  overrule 
a  demurrer^"  to  such  special  paragraph.  Such  is  the  settled  law 
of  this  State. 

What  is  said  by  Judge  Howk,  in  Morris  v.  Thomas,  57  Ind. 
316,  is  not  in  conflict  with  our  decision  on  this  point.  He  says 
in  that  case,  that,  "An  argumentative  denial  is  seldom  'good,' 
in  pleading,  for  any  purpose";  but  the  case  does  not  decide 
that  an  argumentative  denial  may  not,  in  any  case,  contain  facts 
constituting  a  defense  to  an  action.^    *    «    * 

Judgment  affirmed. 


EWEN  V.  C.  &  N.  RY.  CO. 
Supreme  Court  of  Wisconsin,  1875.    38  Wis.  613. 

Action  under  sections  12  and  13,  ch.  135,  R.  S.,  by  the  plain- 
tiff as  administrator,  to  recover  damages  alleged  to  have  been 
sustained  by  Mrs.  Kittie  McCall  by  the  death  of  her  son,  an  in- 
fant about  nine  years  of  age,  caused  by  the  negligence  of  the 
defendant  in  operating  its  railway  in  Milwaukee,  on  November 
23,  1872.  The  answer  was  a  general  denial,  and  a  charge  of  con- 
tributory negligence.     *     *     * 

The  defendant  moved  for  a  nonsuit,  on  the  grounds,  (1)  that 

10  See  S.  L.  M.  Ry.  Co.  v.  Hineh-  the  truth  of  the  matter  sought  to 

lifts,    170   N.   Y.   493,    (1902),   that  be  denied,   see  Dimon  v.  Dunu,  15 

an  argumentative  denial  is  not  for  N.   Y.   498,    (1857);    West    v.    Am. 

that  reason  bad  on  demurrer,  but  Exch.   Bk.,   44   Barb.,    175,    (1865). 

may    be    subject    to    a    motion    to  An   argumentative   denial  is   not 

strike   out,  or   make  more   specific.  admitted  by  a   failure  to  traverse 

1  For    illustrations    of    argumen-  it,  Woodworth  v.  Knowlton,  22  Cal. 

tative  denials  held  insufficient  be-  164,     (1863);    Phillips    v.    Hagart, 

cause  not  clearly  inconsistent  with  113  Cal.  552,   (1896). 


498  The  Answer.  [Chap.  V. 

the  plaintiff  had  not  proved  that  he  was  administrator  of  the 
deceased,  and  hence  had  shown  no  right  to  prosecute  this  action ; 
and  (2)  that  the  deceased  and  his  mother  were  each  guilty  of 
contributory  negligence.  The  motion  was  overruled.  *  *  * 
There  was  a  verdict  and  judgment  for  the  plaintiff  from  which 
defendant  appealed.* 

Cole,  J.  *  *  *  The  next  exception  arising  on  the  record 
is  the  one  taken  to  the  ruling  of  the  court  refusing  to  nonsuit. 
It  is  insisted  that  the  nonsuit  should  have  been  granted  for 
failure  to  prove  the  representative  character  of  the  plaintiff.  It 
is  said  the  representative  character  of  the  plaintiff  was  directly 
put  in  issue  by  the  general  denial  in  the  answer,  and  that  there- 
fore the  plaintiff  was  bound  to  prove  it  in  order  to  maintain  the 
action.  This  question  was  considered  and  passed  upon  in  San- 
ford  V.  McCreedy,  28  "Wis.  103,  and  Wittmann  v.  Watry,  37  id. 
238.  In  the  former  case,  Mr.  Justice  Lyon  remarks,  that  the 
general  denial  under  the  Code  has  no  broader  application  than 
the  general  issue  under  the  old  system  of  pleading,  and  that  all 
the  authorities  agreed  that  the  representative  character  of  the 
plaintiff  was  not  put  in  issue  by  a  plea  of  the  general  issue.^  In 
"Wittmann  v.  Watry,  where  the  plaintiff  sued  as  executrix,  the 

2  statement   condensed   and  part  "Upon  principle  I  think  the  mat- 

of  the   opinion  omitted.  ter  was  well  pleaded  in  bar.     The 

8  It    seems    well   settled    that    at  plea    does    not    nor    could    it    give 

common    law    the    appointment    of  the  plaintiff  a  better  writ,  but  it 

an  administrator  was  not  in  issue  destroys  the  action  altogether.     If 

under  a  plea  of  the  general  issue,  they  are  not   executors,  they  have 

Thynne    v.    Prothero,    2    M.    &    S.,  no    right    to    sue    in    this    or    any 

553,    (1S14):  other   form.     They   have   no   cause 

There    is    some    confusion    as    to  of  action  against  the  defendant." 

whether   the   plea   of   "ne   unques  See     same     reasoning     applied     in 

administrator"   was  in   abatement  Hamilton    v.    Mclndoo,    81    Minn, 

or   in   bar.  324,     (1900),    where     a     complaint 

For  the  view   that  it  was  prop-  failed  to   allege  the  plaintiff's  ap- 

erly  pleadable  in  bar,  see  Noonan  pointment      as      administrator     de 

v.    Bradley,    9    Wall.    394,     (U.    S.  bonis    non,    and    it    was    objected 

Sup.,  1869),  sustaining  the  joinder  that  this  could  only  be  taken  ad- 

of    such    a    plea    with    other    pleas  vantage  of  on  special  demurrer  for 

to   the   merits;    and   so   in   Thomas  lack    of    capacity    to    sue,    but    it 

v.    Cameron,    16    Wendell   579,    (N.  was  held  that  because  of  the  omis- 

Y.    Sup.    1837)    in   which    Bronson,  sion  the  complaint  failed  to  state 

J.,    sustained    the    joinder    of    this  a  cause  of  action  in  favor  of  the 

plea  with  "non  assumpsit"  on  the  plaintiff, 
following  grounds: 


Sec.  1.]  General  and  Specific  Denials.  499 

answer  contained  a  special  denial  of  her  representative  char- 
acter; and  this  court  held  that  this  form  of  denial  put  in  issue 
the  character  in  which  the  plaintiff  sued,  and  that  it  was  essen- 
tial for  her  to  prove  that  she  was  executrix.  It  was  in  the  na- 
ture of  a  special  plea  in  bar,  as  in  Thomas  v.  Cameron,  16 
Wend.  579,  and  Flinn  v.  Chase,  4  Denio  86.  It  is  very  evident 
that  under  the  rule  laid  down  and  sanctioned  in  the  above  cases, 
the  representative  character  of  the  plaintiff  would  be  put  in  is- 
sue only  by  a  special  denial  of  that  fact  in  the  answer,  and  that 
under  the  general  denial  the  defendant  did  not  controvert  it.* 
And  as  the  representative  character  of  the  plaintiff  was  implied- 
ly admitted  under  the  form  of  the  answer,  it  follows  of  course 
that  the  plaintiff  was  not  obliged  to  prove  it.  It  is  said  that 
this  construction  of  the  answer  plainly  disregards  the  language 
of  the  statute  (sec.  10,  ch.  125),  and  destroys  the  effect  which 
it  gives  to  a  general  denial.  "We  do  not  understand  that  the 
statute  enacts  what  effect  shall  be  given  the  general  denial  in 
the  answer.  It  declares  what  the  answer  shall  contain,  but  does 
not  state  that  the  general  denial  shall  be  deemed  to  controvert 
in  all  cases  every  material  allegation  of  the  complaint.     *    *    * 

Judgment  ajfirmed. 


FOGLE,  ADM'R  v.  SCHAEFFER. 

Supreme  Court  of  Minnesota,  1877.    23  Minn.  304. 

The  plaintiff  recovered  in  the  court  below  without  proof  of 
his  appointment  as  administrator,  and  the  defendant  appealed.* 

Berry,  J.  This  is  an  action  brought  in  the  court  of  common 
pleas  of  Hennepin  County,  upon  a  judgment  against  the  defend- 
ant recovered  in  Stark  county,  Ohio,  by  Frances  Fogle,  as  ad- 
ministratrix of  the  estate  of  Lewis  Fogle,  deceased.  The  com- 
plaint alleges  that,  "after  the  recovery  of  the  judgment,  said 
Frances  Fogle,  administratrix,  departed  this  life,  and  this  plain- 
ts See  same  result  in  Gross  v.  (1858);  Compare  Hamilton  v.  Me- 
Watts,  20C  Mo.  373,  (1907),  ap-  Indoo,  ante  p.  459. 
parently    on   the    ground    that   the  6  Statement   condensed   and  part 

defense    was   in    abatement.      And      of  the  opinion  omitted. 
80  in  White  v.  Moses,  11  Cal,  69, 


500  The  Answer.  [Chap.  V. 

tiff  was,  thereupon,  to  wit,  on  or  about  April  14,  1875  duly  ap- 
pointed and  qualified,  by  and  in  the  probate  court  of  said  county 
of  Stark,  as  administrator  de  bonis  non  of  the  estate  of  said 
Lewis  Fogle,  deceased,  and  has  since  been  and  now  is  such  ad- 
ministrator ;6  that,  before  the  commencement  of  this  action,  this 
plaintiff  duly  filed  in  the  probate  court  of  said  county  of  Hen- 
nepin a  duly  authenticated  copy  of  his  appointment  as  such  ad- 
ministrator."  For  answer  to  the  complaint  the  defendant 
"denies  the  same,  and  each  and  every  part  and  portion  there- 
of." The  question  in  the  case  is  whether  the  answer  puts  in 
issue  the  foregoing  allegations  of  the  complaint  as  to  the  plain- 
tiff's character  as  administrator,  and  his  right  to  bring  this 
action. 

The  rule  upon  the  subject  involved  in  this  question  is  correct- 
ly stated  in  Fetz  v.  Clark,  7  Minn.  217,  as  follows:  ''The  de- 
nial, in,  general  terms,  of  each  and  every  allegation  of  the  com- 
plaint is  not  confined  in  any  case  to  a  denial  of  the  principal 
fact  on  which  the  complaint  is  founded,  but  is  equivalent  to  a 
denial  of  each  material  allegation  thereof,  just  as  though  the 
pleader  had  traversed  the  several  allegations  in  detail."  The 
decision  in  which  this  rule  is  found  was  made  in  1862,  and  it 
was  preceded  by  earlier  decisions  of  this  court  in  the  same  di- 
rection. Substantially  the  same  rule  is  laid  down  in  Kingsley 
v.  Oilman,  12  Minn.  515.  We  are  not  aware  that  it  has  been 
departed  from  in  this  court.  It  is,  therefore,  not  only  a  well- 
established  rule,  but  we  think  it  is  a  correct  rule.  The  reasons 
given  for  it  in  Fetz  v.  Clark  are  quite  satisfactory.  See,  also, 
Boston  Relief  &  Submarine  Co.  v.  Burnett,  1  Allen  410;  Gott 
v.  Adams  Express  Co.,  100  Mass.  320.  It  follows  that  the  allega- 
tions of  the  complaint,  in  reference  to  the  plaintiff's  character  as 
administrator,  and  his  right  to  bring  this  action,  being  material 
allegations,  were  put  in  issue  by  the  answer  in  this  case.    *    *    * 

Judgment  reversed. 

6  It  is  permissible  to  allege  the  administrator  is  treated  as  a  con- 
appointment  of  an  administrator  dition  precedent,  which  must  be 
in  general  terms,  but  in  case  of  alleged  as  in  the  principal  case, 
an  administrator  de  bonis  non,  the  Hamilton  v.  Mclndoo,  81  Minn, 
death  or  discharge  of  the  original  324,   (1900),  ante  p.  459. 


Sec.  1.]  General  and  Specific  Denials.  501 

BEATTIE  V.  BARTHOLOMEW  AGR'L  SOCIETY. 

Supreme  Court  of  Indiana,  1881.     76  Ind.  91. 

Newcomer,  C'  This  was  an  action  by  the  appellee  to  recover 
damages  for  the  loss  of  certain  stalls  and  sheds  situated  on  the 
fair  grounds  of  the  appellee  by  fire  occasioned,  as  was  alleged, 
by  the  negligence  of  the  appellant.  There  was  a  verdict  in  favor 
of  the  plaintiff  below,  and  a  judgment  on  the  verdict,  over  the 
defendant's  motion  for  a  new  trial.  The  only  error  assigned 
is  the  overruling  of  the  motion  for  a  new  trial.    *    *    * 

The  remaining  reason  assigned  for  a  new  trial  is,  that  no  evi- 
dence was  given  that  the  plaintiff  was  a  corporation.  The  argu- 
ment is  that  it  was  necessary  to  aver  this  fact  in  the  complaint, 
and  that  every  fact  stated  in  the  complaint  was  put  in  issue  by 
the  general  denial,  and  therefore  there  was  a  failure  of  proof. 
But  the  rule  in  this  State  is,  that  the  general  denial  admits  the 
character  in  which  the  plaintiff  sues,  and  that  the  question  of 
the  plaintiff's  corporate  capacity  must  be  raised  by  an  answer 
of  nul  tiel  corporation.'     Hubbard  v.  Chappel,  14  Ind.   601 ; 

7  Part  of  opinion  omitted.  In   Keokuk   Bridge   Co.   v.  Wet- 

8  There  is  some  confusion  as  to  zel,  228  111.  253,  (1907),  it  was 
whether  at  common  law  the  plea  held  that  while  a  plea  of  nul  tiel 
of  nul  tiel  corporation  was  in  corporation  applied  to  the  plaintiff 
abatement  or  in  bar.  For  the  was  a  plea  in  bar  because  it  pre- 
view that  it  was  a  plea  in  bar,  eluded  any  action,  such  a  plea  ap- 
see  Mayo  v.  Bolton,  1  B.  &  P.  40,  plied  to  the  defendant  was  a  plea 
(1797),  in  which  Eyre,  C.  J.,  ob-  in  abatement  which  must  state  the 
served:  *  *  *  "The  case  in  defendant's  true  character.  For 
Brooke,  Misnomer,  73  seems  to  the  view  that  incorporation  was 
put  a  corporation  in  the  same  situa-  not  in  issue  under  the  general  issue, 
tion  as  a  natural  person  as  to  and  that  a  plea  of  nul  tiel  cor- 
pleas  in  abatement;  where  it  is  poration  was  necessary,  though  it 
said,  in  an  action  by  a  corporation  might  be  pleaded  either  in  bar  or 
or  a  natural  body,  misnomer  of  in  abatement,  See  Barton  Foundry 
the  one  or  the  other  goes  only  to  Co.  v.  Spooner,  5  Vt.  93,  (1833); 
the  writ;  but  to  say  that  there  is  Society  v.  Pawlet,  4  Peters,  480, 
no    such    person   in    rerum    natura,  (U.   S.   Supreme,   1830). 

or    no    such    body    politic,    this    is  For  the  view  that  incorporation 

in  bar,  for  if  he  be  misnamed,  he  was  in  issue  under  the  general  is- 

may  have  a  new  writ  by  the  right  sue,   and   therefore    that    the   plea 

name;    but    if    there    be    no    such  of  nul  tiel  corporation  was  unnec- 

body   politic   or   such   person,   then  essary,  see  Bk.  of  Auburn  v,  "Ward, 

he  cannot  havp  an  action."  19   John,   300,    (N.   Y.    1822);    and 


502 


The  Answer. 


[Chap.  V. 


Heaston  v.  The  Cincinnati,  etc.,  R.  R.  Co.,  16  Ind.  275;  Cicero 
Hygiene  Draining  Co.  v.  Craighead,  28  Ind.  274 ;  The  Indianap- 
olis Furnace  &  Mining  Co.  v.  Herkimer,  46  Ind.  142 ;  The  Guaga 
Iron  Co.  V.  Dawson,  4  Blackf .  202 ;  Harris  v.  The  Muskingum 
etc.,  Co.,  4  Blackf.  267 ;  Wiles  v.  The  Trustee,  etc.,  63  Ind.  206. 
It  was  not  necessary  to  allege^  the  corporate  existence  of  the 
corporation  in  the  complaint.  Emery  v.  The  Evansville,  etc., 
R.  R.  Co.,  13  Ind.  143 ;  Jones  v.  The  Cincinnati  Type  Foundry 
Co.,  14  Ind.  89;  Stein  v.  The  Indianapolis,  etc..  Association,  18 
Ind.  237.  In  Harris  v.  The  Muskingum,  etc.  Co.,  supra,  it  was 
said :  ' '  The  name  itself  implies  that  the  plaintiffs  are  a  corpo- 
ration. *  *  *  If  the  plaintiffs  were  not  authorized  to  sue  by 
the  name  which  they  have  assumed,  the  defendant  could  have 
denied  their  existence  by  a  special  plea."  See,  also,  Mackenzie 
V.  The  Board,  etc.,  72  Ind.  189.1° 

The  appellant  argues  that  the  rule  announced  in  our  deci- 
sions applies  only  to  cases  where  the  party  sued  has  recognized 
the  existence  of  the  corporation ;  but  the  rule  is  not  thus  limited. 
Indeed,  a  party  who  has  contracted  with  a  corporation,  as  such. 


so  by  Gray,  J.,  in  Gott  v.  Adams, 
100  Mass.  320,  (1868):  *  *  * 
"The  plaintiff  on  the  trial  sought 
to  charge  the  defendants  as  a  cor- 
poration. A  denial  of  the  legal 
incorporation  of  an  association 
sought  to  be  so  charged  is  not  mat- 
ter of  abatement  only,  but  may  be 
made  by  answer  on  the  merits. 
Greenwood  v.  Lake  Shore  Kailroad 
Co.,  10  Gray,  373.  The  plaintiff 
did  not  in  his  writ  or  declaration 
allege  in  terms  that  the  defend- 
ants were  a  corporation,  but  only 
that  they  were  "company  having 
a  place  of  business  at  Boston." 
If  this  was  a  sufficient  averment 
that  they  were  a  corporation,  it 
was  met  and  put  in  issue  by  the 
denial  in  the  answer  of  each  and 
every  allegation  in  the  declaration. 
Boston  Belief  &  Submarine  Co.  v. 
Burnett,  1  Allen,  410.  If  it  was 
not  a  sufficient  averment  of  the 
incorporation    of    the    defendants, 


this  assential  fact  was  not  alleged 
at  all,  and  not  being  alleged,  was 
not   admitted  by  the   answer." 

See.  1776  of  the  New  York  Code 
provided  that  in  actions  by  or 
against  a  corporation,  the  plaintiff 
need  not  prove,  upon  the  trial,  the 
existence  of  the  corporation  unless 
the  answer  is  verified  and  contains 
an  affirmative  allegation  that  the 
plaintiff  or  the  defendant,  as  the 
case  may  be,  is  not  a  corporation. 
Similar  statutes  are  found  in  a 
number  of  the  states,  e.  g.  Iowa, 
McClain's  Code,  2716,  2717;  Miss- 
ouri, E.  S.,  1919,  §  1415;  Wiscon- 
sin, Williams  M.  &  R.  Co.  v.  Smith, 
33   Wis.  530,    (1873). 

9  See  Fulton  Ins.  Co.  v.  Baldwin, 
37  N.  Y.  648,  ante  p.  457. 

10  Accord:  Brady  v.  Natl.  Sup- 
ply Co.,  64  Ohio  St.  267,  (1901); 
Montgomery  v.  Ry.,  73  S.  C.  503, 
(1905). 


Sec.  1.]  General  and  Specific  Denials.  503 

is  estopped  to  deny  the  existence  of  the  corporation  at  the  date 
of  the  contract,  by  any  form  of  answer. 

We  find  no  error  in  the  record,  and  the  judgment  should  be 
affirmed. 


HALFERTY  v.  WILMERING. 

Supreme  Court  of  United  States,  1885.    112  TJ.  S.  713. 

Mr.  Justice  Matthews  delivered  the  opinion  of  the  court. 

The  plaintiff  in  error,  who  was  plaintiff  below,  sued  to  recover 
damages  for  an  alleged  breach  of  a  written  contract,  entered 
into  at  Chicago,  for  the  sale  and  delivery  of  1,000  hogs,  to  av- 
erage 250  pounds  or  over,  to  be  delivered  at  Plattsburg,  Miss- 
ouri, in  the  month  of  December,  1876,  at  the  seller's  option,  at 
$4.50  per  hundred  gross  weight.  The  contract  contained  the 
following  clause : 

''Each  party  hereby  agrees  to  deposit  one  thousand  dollars 
($1,000)  each  in  the  Union  Stock  Yard  National  Bank  for  the 
faithful  performance  of  the  above  contract,  the  thousand  dol- 
lars to  be  forfeited  to  the  party  who  fails  to  perform  his  part 
of  the  contract." 

The  petition,  setting  out  the  cause  of  action,  alleged  that  ' '  the 
plaintiff  duly  performed  all  the  conditions  upon  his  part  to  be 
kept  and  performed." 

The  answer  stated  that  the  defendant  ''denies  each  and  every 
allegation  in  said  petition,  and  the  three  several  counts  thereof 
contained  as  fully  and  to  the  same  purpose  and  effect  as  though 
each  special  allegation  were  herein  specifically  put  in  issue." 

On  the  trial  it  was  claimed  by  counsel  for  the  plaintiff  that 
the  deposit  of  money,  specified  in  the  contract,  was  not  a  con- 
dition precedent  to  the  right  of  recovery;  but  that,  if  it  was, 
its  performance  by  the  plaintiff  was  admitted  upon  the  face  of 
the  pleadings.  The  court  was  requested  so  to  instruct  the  jury, 
and  its  refusal  to  do  so  is  now  alleged  as  error. 

The  obligation  to  make  the  stipulated  deposit  rested  upon 
each  party,  as  one  of  the  terms  of  the  agreement,  so  that  to 
charge  the  other  with  a  default,  it  became  necessary  to  allege 
and  prove  performance,  or  some  legal  excuse  for  nonperform- 


504  The  Answer.  [Chap.  V. 

ance.  And  if  the  National  Bank,  specified  in  the  contract,  re- 
fused to  become  the  depository  for  the  purposes  of  the  agree- 
ment, none  other  could  be  substituted  without  the  consent  of 
both  parties.  This  is  the  plain  meaning  of  the  stipulation.  It 
is  one  the  parties  had  a  right  to  make;  and  their  agreement  on 
the  subject  is  the  law  of  the  case. 

The  denial  in  the  answer  of  each  and  every  allegation  in  the 
petition  would  certainly  seem,  as  far  as  words  are  concerned, 
to  put  in  issue  the  performance  in  this  respect,  as  in  every  other, 
on  the  part  of  the  plaintiff,  alleged  in  the  petition. 

But  counsel  for  the  plaintiff  in  error  contends  that  such  is 
not  its  legal  effect  under  the  Code  of  Iowa,  which  also  regulates 
the  pleading  and  practice  in  such  courts  as  the  courts  of  the 
United  States  sitting  in  that  State. 

By  §  2715  of  the  Iowa  Code,  it  is  provided  that  "in  pleading 
the  performance  of  conditions  precedent  in  a  contract,  it  is  not 
necessary  to  state  the  facts  constituting  such  performance,  but 
the  party  may  state,  generally,  that  he  duly  performed  all  the 
conditions  on  his  part;"  and  §  2712  enacts  that  every  material 
allegation  in  a  pleading  not  controverted  by  a  subsequent  plead- 
ing shall,  for  the  purposes  of  the  action,  be  deemed  true. 

§  2717  is  as  follows:  "If  either  of  the  allegations  contem- 
plated in  the  three  preceding  sections  is  controverted,  it  shall 
not  be  sufficient  to  do  so  in  terms  contradictory  of  the  allega- 
tion, but  the  facts  relied  on  shall  be  specifically  stated." 

The  two  other  sections  referred  to  are  §§  2714  and  2716,  the 
latter  of  which  provides  that,  "a  plaintiff  suing  as  a  corpora- 
tion, partnership,  executor,  guardian,  or  in  any  other  way  im- 
plying corporate,  partnership,  representative,  or  other  than  in- 
dividual capacity,  need  not  state  the  facts  constituting  such 
capacity  or  relation,  but  may  aver  generally,  or  as  a  legal  con- 
clusion, such  capacity  or  relation ;  and  where  a  defendant  is  held 
in  such  capacity  or  relation,  a  plaintiff  may  aver  such  capacity 
or  relation  in  the  same  general  way. ' ' 

The  application  of  the  rule  prescribed  in  §  2717  to  the  cases 
described  in  §  2716,  has  several  times  been  considered  and  ad- 
judged by  the  Supreme  Court  of  Iowa.  In  the  most  recent  of 
them,  to  which  our  attention  has  been  called,  Mayes,  Adm'r  v. 
Turley,  60  Iowa  407,  the  plaintiff  averred  in  his  petition  that  he 
was  the  duly  appointed,  qualified  and  acting  administrator  of 
the  estate,  etc.     The  defendants'  answer  said,  they  denied  each 


Sec.  1.]  General  and  Specific  Denials.  505 

and  every  allegation  in  said  petition  contained.  It  was  held  by 
the  court  that  the  jury  should  have  been  instructed  that,  the 
denial  being  insufficient,  they  could  not  take  notice  of  it,  and 
they  should  therefore  consider  it  admitted  that  the  plaintiff  was 
duly  appointed  and  qualified  administrator. 

So  in  Stier  v.  The  City  of  Oskaloosa,  41  Iowa  353,  it  was  held 
that  a  bare  denial,  in  the  answer,  of  the  averment  in  the  peti- 
tion, that  the  defendant  was  a  corporation,  does  not  put  that 
fact  in  issue. 

To  the  same  effect  are  the  following  cases :  Coates  v.  The 
Galena  and  Chicago  Union  Railroad  Co.,  18  Iowa  277;  Black- 
shire  v.  The  Iowa  Homestead  Co.,  39  Iowa  624;  Gates  v.  Car- 
penter, 43  Iowa  152. 

No  distinction  can  be  drawn  between  the  application  of  the 
rule  to  the  cases  mentioned  in  §  2716  and  that  specified  in 
§  2715 ;  and  upon  such  a  question  we  feel  bound  to  adopt  the 
construction  of  the  State  Code  which  has  been  established  by 
the  decisions  of  the  Supreme  Court  of  Iowa. 

It  follows,  therefore,  that  the  Circuit  Court  erred  in  its  in- 
struction to  the  jury  that  the  alleged  performance,  on  the  part 
of  the  plaintiff  below,  of  the  condition  of  the  contract  which  re- 
quired a  deposit  of  money  in  the  Union  Stock  Yard  National 
Bank,  was  a  matter  of  issue  and  requiring  proof;  and  in  not 
instructing  them,  as  requested  by  the  defendant,  that  it  was  to 
be  taken  as  a  fact  without  proof,  upon  the  admission  in  the 
pleadings.^ 

Judgment  of  the  Circuit  Court  reversed. 

1  And  so  in  Nat'l  Surety  Co.  105,  (1917),  under  same  provision 
V.   Queen   City   Land   Co.,   63   Cal.      as  §  533  N.  Y.  Code. 


13 


506  The  Answer.  [Chap.  V. 

Section  2.    New  Matter. 

I,    In  Abatement} 

DUTCHER  V.  BUTCHER. 

Supreme  Court  of  Wisconsin,  1876.    39  Wis.  651. 

Action  for  divorce,  on  the  ground  of  adultery.  The  answer 
was  a  general  denial.^ 

Ryan,  C.  J.  We  do  not  understand  the  appellant's  adulter- 
ous intercourse  with  his  paramour  to  be  questioned  on  this  ap- 
peal. We  understand  his  counsel  to  rest  the  appeal  on  two 
positions:  first,  that  the  respondent  is  not  a  resident,  within 
the  statute ;  and,  second,  that  she  had  discovered  the  adulterous 
cohabitation  of  the  appellant  more  than  three  years  before  suit 
brought.    *    *    * 

We  are,  therefore,  of  opinion  that  the  respondent  was  in  no 
sense  a  resident  of  this  state  within  the  meaning  of  the  statute, 
at  the  time  of  the  commencement  of  her  suit. 

But  the  question  remains,  whether  the  pleadings  raise  the  is- 
sue of  her  residence.  Her  want  of  residence  under  the  statute 
is  clearly  a  personal  disability,  not  affecting  the  present  right  of 
action,  but  only  the  present  right  to  prosecute  the  action;  a 
disability  which  might  be  cured ;  clearly  matter  of  abatement, 
not  of  bar.  ''Whenever  the  subject  matter  of  the  defense  is  that 
the  plaintiff  cannot  maintain  any  action,  at  any  time,  whether 
present  or  future,  in  respect  of  the  supposed  cause  of  action,  it 
may  and  usually  must  be  pleaded  in  bar;  but  matter  which 
merely  defeats  the  present  proceedings,  and  does  not  show  that 
the  plaintiff  is  forever  concluded,  should  in  general  be  pleaded 
in  abatement."  1  Chitty's  PI.  446.  "All  declinatory  and  dil- 
atory pleas  in  equity  are  properly  pleas,  if  not  in  abatement,  at 
least  in  the  nature  of  pleas  in  abatement ;  and,  therefore,  in 
general,  the  objections  founded  thereon  must  be  taken  ante  litem 
contestatam  by  plea,  and  are  not  available  by  way  of  answer,  or 

1  At  common  law  a  plea  in  abate-  give  the  plaintiff  a  better  writ, 
ment   was   normally   aflfirmative   in  2  Statement   condensed   and  part 

form  and  alleged  new  or  additional  of  the  opinion   omitted, 
facts  under  the  rule   that   it   must 


Sec.  2.]  New  Matter.  507 

at  the  hearing."  Story's  Eq.  PI.,  §  708.  So  Lord  Redesdale 
distinguishes  pleas  "that  the  plaintiff  is  not  entitled  to  sue  by 
reason  of  some  personal  disability,"  and  that  "the  plaintiff  has 
no  interest  in  the  subject,  or  no  right  to  institute  a  suit  concern- 
ing it,"  from  pleas  in  bar,  and  calls  them  pleas  to  the  person  of 
the  plaintiff.    Mitford's  PI.,  220. 

And  the  distinction  is  not  one  of  form  merely,  but  of  sub- 
stance. For,  generally,  judgment  for  the  defendant  on  pleas  in 
abatement,  abates  the  action  only ;  on  plea  in  bar,  bars  the  cause 
of  action  everywhere  and  forever.  In  the  present  case,  judg- 
ment against  the  respondent  for  want  of  residence  within  the 
statute,  should  not  operate  to  bar  another  action  here,  if  she 
should  have  acquired  a  residence;  or  elsewhere,  at  any  time  or 
under  any  circumstances. 

The  code  does  not  touch  the  distinction  between  defenses  in 
abatement  and  defenses  in  bar,  or  the  legal  effect  of  judgments 
upon  them.  It  does  indeed  modify  the  manner,  form  and  time 
of  putting  in  such  defenses,  but  does  not  confound  them  or  their 
consequences.  Formerly,  pleas  in  abatement  and  pleas  in  bar 
must  have  been  separately  and  successively  pleaded  in  that 
order;  now,  matter  of  abatement  and  matter  of  bar  may  be  set 
up  as  separate  defenses  in  the  same  answer.  Freeman  v.  Car- 
penter, 17  Wis.  126.  "Whether  they  may  be  successively  pleaded 
and  tried;  or,  being  pleaded  together,  may  be  separately  tried, 
are  questions  not  now  before  us. 

If  certain  matters  in  abatement  are  apparent  in  the  complaint, 
they  are  ground  for  demurrer  under  the  code.  But  if  matter  in 
abatement,  not  apparent  in  the  complaint,  be  relied  on  as  a  de- 
fense, it  must  be  specially  pleaded  in  the  answer.  Ch.  125, 
sees.  5,  8,  R.  S. 

A  general  denial  is  a  plea  in  bar,  not  broader  at  least  than  the 
general  issue  at  common  law,  and  cannot  raise  any  defense  by 
way  of  abatement.  Martin  v.  Pugh,  23  Wis.  184;  Sanford  v. 
McCreedy,  28  id.  103 ;  Ewen  v.  Railway  Co..  38  id.  613.  Judg- 
ment for  the  defendant  upon  a  general  denial  is  a  general 
judgment :  a  bar  to  all  future  actions  for  the  same  cause. 

And  it  would  be  a  cruel  abuse  that  it  should  go  upon  a  de- 
fense in  abatement,  concealed  in  gremio.  The  code  intended  no 
such  perversion  of  justice.  And  it  is  well  settled  in  this  court 
that  matter  in  abatement,  not  apparent  in  the  complaint,  must, 
like  other  special  defenses,  be  specially  pleaded  in  the  answer 


508  The  Answer.  [Chap.  V. 

Freeman  v.  Carpenter,  Sanford  v.  McCreedy,  Ewen  v.  Railway- 
Co.,  supra;  Moir  v.  Dodson,  14  Wis.  279 ;  Cord  v.  Hirsch,  17  id. 
403 ;  Kimball  v.  Noyes,  id.  695 ;  Harbeck  v.  Southwell,  18  id, 
418 ;  Bevier  v.  Dillingham,  id,  529 ;  Wilson  v.  Jarvis,  19  id.  599 ; 
Bobbins  v.  Deverill,  20  id.  142;  Supervisors  v.  Hackett,  21  id. 
613 ;  Lefebre  v.  Utter,  22  id.  189 ;  Quinn  v.  Quinn,  27  id.  168 ; 
Noonan  v.  Orton,  34  id.  259;  Wittman  v.  Watry,  37  id.  238; 
Smith  V.  Peckham,  ante,  p.  414.  This  point  was  overlooked  at 
the  bar,  and  therefore  not  passed  upon  by  the  court,  in  Hall  v. 
Hall,  25  Wis.  600. 

There  is  a  strong  analogy  between  this  question  and  the  ques- 
tions of  jurisdiction  in  the  federal  courts,  resting  on  the  citizen- 
ship of  parties.  In  those  courts,  all  objections  founded  on  citi- 
zenship of  the  parties  must  be  specially  pleaded  in  abatement, 
or  they  are  waived.^  Conard  v.  Insurance  Co.,  1  Pet.  386; 
D  'Wolfe  V.  Rabaud,  id.  476 ;  Sheppard  v.  Graves,  14  How.  505. 

The  appellant  contends  that  the  defense  here  is  in  the  nature 
of  a  plea  to  the  jurisdiction.  We  do  not  think  so,  but  need  not 
discuss  the  point.  For  by  all  the  authorities  the  rule  equally  ap- 
plies to  pleas  to  the  jurisdiction,  which,  if  not  strictly  pleas  in 
abatement,  are  in  the  nature  of  pleas  in  abatement.  See  Chitty, 
Story,  Mitford,  iibi  supra. 

The  defense,  therefore,  that  the  respondent  was  not  a  resident 
of  the  state,  though  well  founded  in  fact,  was  inadmissible  under 
the  pleadings  in  this  case. 

Judgment  reversed.^ 


DAVIS  v.  CHOUTEAU. 

Supreme  Court  of  Minnesota,  1884.    32  Minn.  548. 

Appeal  by  defendants  from  an  order  refusing  a  new  trial. 
Mitchell,  J.     This  is  an  action  to  recover  for  professional 
services  as  attorney,  rendered  by  plaintiff  to  defendants  between 

8  But  see  Roberts   v.  Lewis,   144  and   the   cause   remanded   in   order 

IT.   S.   653,  post,  p.  511.  that    the    defendant    might    amend 

4  Because   of  the  interest   of  the  his    answer    so    as    to    present    the 

State   in    actions    for   divorce,    the  defense   of  the   plaintiff's   lack   of 

judgment  in  this  case  was  reversed  legal  residence  in  the  State. 


Sec,  2.]  New  Matter.  509 

February,  1881,  and  August,  1883,  in  a  suit  pending  in  the  su- 
preme court  of  the  United  States,  on  appeal  from  the  United 
States  circuit  court  for  the  district  of  Minnesota.  The  point 
raised  is  that  the  evidence  shows  that  the  contract  of  retainer, 
under  which  the  services  were  rendered,  was  made  with  plain- 
tiff while  he  was  a  member  of  the  law  firm  of  Davis,  O'Brien 
&  Wilson,  and  hence  was,  in  law,  a  retainer  of  the  firm,  and 
therefore  the  cause  of  action  proved  was  one  in  favor  of  that 
firm,  and  not  in  favor  of  plaintiff  individually,  as  alleged. 
*  *  *  But,  for  the  purpose  of  this  appeal,  we  shall  assume 
that  the  appellant  is  correct  in  the  position  that  the  other  mem- 
bers of  the  firm  of  Davis,  O'Brien  &  Wilson  should  have  joined 
as  plaintiffs.  The  question  remains,  how  should  this  omission 
be  taken  advantage  of? 

Under  the  common-law  system,  in  actions  ex  delicto,  if  a  party 
who  ought  to  join  as  plaintiff  was  omitted,  the  objection  could 
only  be  taken  by  plea  in  abatement,  and  not  as  a  ground  of  non- 
suit on  the  plea  of  the  general  issue.  In  actions  ex  contractu, 
in  case  of  defendants,  if  there  was  a  non-joinder  of  a  party 
jointly  liable  on  the  contract,  the  same  rule  obtained.  But  in 
case  of  plaintiffs,  the  non-joinder  of  a  co-contractor  might  be 
taken  advantage  of  at  the  trial,  under  the  general  issue,  as  a 
variance  between  the  contract  pleaded  and  that  proved.  The 
good  sense  of  this  distinction,  while  admitted  to  exist,  was  often 
questioned;  and  it  was  sometimes  suggested  by  the  courts  that 
it  would  have  been  more  convenient  that  the  parties  should, 
after  issue  joined,  proceed  on  the  merits,  than  that  the  defend- 
ant should  be  allowed  to  nonsuit  the  plaintiff  on  the  trial.  See 
Wilson  V.  Wallace,  8  Serg.  &  R.  52 ;  1  Chit.  PI.  14,  note  x.  The 
change  made  by  the  Code  is,  we  think,  in  accordance  with  this 
suggestion.  Under  its  provisions  we  can  see  no  ground  for  any 
distinction  in  this  regard  between  actions  ex  contractu  and  ac- 
tions ex  delicto,  or  between  a  defect  of  parties  plaintiff  and  of 
parties  defendant.  We  can  find  no  suggestion  of  any  such  dis- 
tinction in  any  of  the  practice  reports.  On  the  contrary,  we  think 
the  manifest  intention  was  to  require  all  objections  to  defects 
of  parties,  either  plaintiff  or  defendant,  whether  in  actions  ex 
delicto  or  ex  contractu,  to  be  raised  by  demurrer,  if  they  appear 
on  the  face  of  the  complaint,  (Gen.  St.  1878,  c.  66  §  92),  other- 
wise by  answer,  (Id.  §  94)  ;and  if  not  taken  either  by  demurrer 
or  answer,  the  defendant  is  deemed  to  have  waived  the  objec- 


510  The  Answer.  [Chap.  V. 

tion.  Id.  c.  66  §  95.  The  plain  purpose  of  these  provisions  is, 
in  all  cases  of  a  defect  of  parties,  to  require  the  defendant  to 
specifically  raise  the  objection  and  point  out  the  alleged  defect, 
so  that,  if  necessary,  the  court  may  allow  an  amendment  sup- 
plying the  defect,  (as  it  may  do.  Gen.  St.  1878,  c.  66,  §  124)  and 
allow  the  action  to  proceed,  instead  of,  as  formerly,  permitting 
the  defendant  to  join  issue  on  the  merits  and  then  move  for  a 
nonsuit  on  the  trial. 

We  are  of  opinion  that  in  the  present  case  there  was,  at  most, 
what,  under  the  Code,  must  be  deemed  a  defect  of  parties  plain- 
tiff, which,  not  appearing  on  the  face  of  the  complaint,  could 
only  be  taken  advantage  of  by  answer  setting  it  up  as  a  defense, 
and,  if  not,  would  be  waived,  and  could  not  afterwards  be  taken 
advantage  of.  See  Scranton  v.  Farmers'  &  Mechanics'  Bank, 
33  Barb.  527 ;  Conklin  v.  Barton,  43  Barb.  435 ;  Abbe  v.  Clark, 
31  Barb.  238;  Zabriskie  v.  Smith,  13  N.  Y.  322;  Merritt  v. 
Walsh,  32  N.  Y.  685.  We  have  carefully  examined  all  the  au- 
thorities cited  by  appellatit,  and  find,  so  far  as  they  bear  on  this 
question,  that  they  were  either  under  the  former  system,  or  else 
the  objection  was  properly  raised  by  answer.  See  Slutts  v. 
Chafee,  48  Wis.  617.  It  is  contended,  however,  that  the  objec- 
tion is  sufficiently  made  by  answer  in  this  case.  When  carefully 
analyzed,  and  compared  with  the  allegations  of  the  complaint, 
it  will  be  found  that  this  answer  amounts,  practically,  to  noth- 
ing but  a  denial  of  the  complaint,  and  was  never  intended  and 
cannot  be  construed  to  set  up  the  defense  of  a  defect  of  parties. 
Such  a  defense  must  be  set  up  distinctly,  and  must  specifically 
show  wherein  the  defect  consists,  and  who  should  have  been 
joined  as  a  party.^ 

Order  affirmed. 

6  And  so  in.  the  case  of  a  non-  eology  of  the  former  system  of 
joinder  of  a  necessary  defendant,  pleading,  it  'does  not  give  the 
Albro  V.  Lawson,  17  B.  Monroe,  plaintiff  a  better  writ.'  *  *  * 
642,  (Ky.  1856);  Maurer  v.  Miday,  A  plea  in  abatement  for  nonjoinder 
25  Neb.  575,  (1889);  Newhall  should  give  the  names  of  the  par- 
House  Co.  V.  Ry.,  47  Wis.  516,  ties  omitted,  and  show  that  they 
(1879);  Cone  v.  Cone,  61  S.  C.  512,  are  alive  and  within  the  jurisdic- 
(1900);  Levi  v.  Haverstick,  51  Ind.  tion  of  the  Court." 
236,  (1875).  In  the  Cone  case  the  For  the  rule  in  case  of  a  de- 
court  observed:  niurrer   for   defect   of   parties,    see 

"It    (the   plea  in  abatement)   is  Porter   v.  Fletcher,   25   Minn.   493, 

defective,  in  that,  to  use  the  phras-  (1879),   ante   p.   183. 


Sec.  2.]  New  Matter.  511 

ROBERTS  V.  LEWIS. 

Supreme  Court  of  United  States,  1892.     144  V.  S.  653. 

Mr.  Justice  Gray:  *  *  *  But  a  preliminary  question  to 
be  decided  is  whether  the  Circuit  Court  of  the  United  States 
appears  upon  this  record  to  have  had  any  jurisdiction  of  the 
case. 

The  petition  or  declaration  alleges  in  due  form  that  the  plain- 
tiff is  a  citizen  of  the  State  of  Wisconsin,  and  the  defendant  is  a 
citizen  of  the  State  of  Nebraska;  and  further  alleges  that  the 
plainfiff  has  a  legal  estate  in  and  is  entitled  to  the  immediate 
possession  of  certain  lots  in  Lancaster  County  in  the  State 
of  Nebraska,  and  the  defendant  has  kept  and  still  keeps  the 
plaintiff  out  of  possession  thereof;  wherefore  the  plaintiff'  prays 
for  judgment  for  delivery  of  possession  of  the  premises  to  him. 
The  answer  sets  up  two  defenses :  1st.  Open  and  adverse  pos- 
session of  the  premises  by  the  defendant  for  ten  years;  2d.  A 
general  denial  of  each  and  every  allegation  in  the  petition.  The 
special  verdict  finds  facts  bearing  on  the  merits  of  the  case,  but 
nothing  as  to  the  citizenship  of  the  parties. 

Whenever  the  jurisdiction  of  the  Circuit  Court  of  the  United 
States  depends  upon  the  citizenship  of  the  parties,  it  has  been 
held  from  the  beginning  that  the  requisite  citizenship  should  be 
alleged  by  the  plaintiff,  and  must  appear  of  record;  and  that 
when  it  does  not  so  appear  this  court,  on  writ  of  error,  must 
reverse  the  judgment,  for  want  of  jurisdiction  in  the  Circuit 
Court.  Brown  v.  Keene,  8  Pet.  112 ;  Continental  Ins.  Co.  v. 
Rhoads,  119  U.  S.  237. 

Doubtless,  so  long  as  the  rules  of  pleading  in  the  courts  of 
the  United  States  remained  as  at  connnon  law,  the  requisite 
citizenship  of  the  parties,  if  duly  alleged  or  apparent  in  the 
declaration,  could  not  be  denied  by  the  defendant  except  by  plea 
in  abatement,  and  was  admitted  by  pleading  to  the  merits  of 
the  action.     Sheppard  v.  Graves,  14  How.  505. 

But  since  1872,  when  Congress  assimilated  the  rules  of  plead- 
ing, practice  and  forms  and  modes  of  procedure  in  actions  at 
law  in  the  courts  of  the  United  States  to  those  prevailing  in 
the  courts  of  the  several  States,  all  defenses  are  open  to  a  de- 
fendant in  the  Circuit  Court  of  the  United  States,  under  any 
form  of  plea,  answer  or  demurrer,  which  would  have  been  open 


512  The  Answer.  [Chap.  V'. 

to  him  under  like  pleading  in  the  courts  of  the  State  within 
which  the  Circuit  Court  is  held.  Act  of  June  1,  1872,  c.  225 
§  5;  17  Stat.  197;  Rev.  Stat.  §  914;  Chemung  Canal  Bank  v. 
Lowery,  93  U.  S.  72 ;  Glenn  v.  Sumner,  132  U.  S.  152 ;  Central 
Transportation  Co.  v.  Pullman's  Car  Co.,  139  U.  S.  24,  39,  40. 

By  the  Nebraska  Code  of  Civil  Procedure,  §  62,  every  civil  ac- 
tion is  commenced  by  petition ;  and  by  §  92,  the  petition  must 
contain  "the  name  of  the  court  and  county  in  which  the  action 
is  brought,  and  the  names  of  the  parties,  plaintiff  and  defend- 
ant," "a  statement  of  the  facts  constituting  the  cause  of  ac- 
tion, ' '  and  ' '  a  demand  of  the  relief  to  which  the  party  supposes 
himself  entitled."  By  §  94  the  defendant  may  demur  to  the 
petition  for  certain  matters  appearing  on  its  face,  among  which 
are  "that  the  court  has  no  jurisdiction  of  the  person  of  the 
defendant,  or  the  subject  of  the  action,"  and  "that  the  petition 
does  not  state  facts  sufficient  to  constitute  a  cause  of  action;" 
and  by  §  95,  the  demurrer  must  specify  the  grounds  of  objec- 
tion, or  else  be  regarded  as  limited  to  the  latter  ground  only. 
By  §  96,  "when  any  of  the  defects  enumerated  in  §  94  do  not 
appear  upon  the  face  of  the  petition,  the  objection  may  be  taken 
by  answer;"  and  in  every  case,  by  §  99,  the  answer  must  con- 
tain "a  general  or  specific  denial  of  each  material  allegation  of 
the  petition  controverted  by  the  defendant,"  and  "a  statement 
of  any  new  matter  constituting  a  defense." 

Under  this  code,  as  under  the  code  of  New  York,  upon  which 
it  was  modelled,  the  answer  takes  the  place  of  all  pleas  at  com- 
mon law,  whether  general  or  special,  in  abatement  or  to  the 
merits;  and  a  positive  denial  in  the  answer  of  "each  and  every 
allegation  in  the  petition,"  puts  in  issue  every  material  allega- 
tion therein,  as  fully  as  if  it  had  been  specifically  and  separately 
denied.  Sweet  v.  Tuttle,  14  N.  Y.  465;  Gardner  v.  Clark,  21 
N.  Y.  399 ;  Donovan  v.  Fowler,  17  Neb.  247 ;  Hassett  v.  Curtis, 
20  Nebraska  162;  Maxwell's  Practice  (4th  ed.)  127,  128;  Bliss 
on  Code  Pleading  (2d  ed.)  §  345.  And  by  the  express  terms 
of  §§  94,  96,  above  cited,  an  objection  that  the  court  has  no 
jurisdiction,  either  of  the  person  of  the  defendant  or  of  the 
subject  of  the  action,  may  be  taken  by  demurrer,  if  it  appears 
on  the  face  of  the  petition,  and  by  answer,  if  it  does  not  so 
appear. 

The  necessary  consequence  is  that  the  allegation  of  the  citi- 


Sec.  2.] 


New  Matter. 


513 


zenship  of  the  parties,  being   a  material^  allegation  properly 
made  in  the  petition,  was  put  in  issue  by  the  answer,  and,  like 


6  Mr.  Justice  Day  in  Gilbert  v. 
David,  235  U.  S.  561,  (1915): 
*  *  *  The  act  of  March  3,  1875, 
c.  137,  18  Stat.  470,  472,  §  5,  now 
§  37  of  the  Judicial  Code,  provides: 
"If  in  any  suit  commenced  in  a 
district  court,  or  removed  from  a 
state  court  to  a  district  court  of 
the  United  States,  if  it  shall  ap- 
pear to  the  satisfaction  of  the  said 
district  court,  at  any  time  after 
such  suit  has  been  brought  or  re- 
moved thereto,  that  such  suit  does 
not  really  and  substantially  in- 
volve a  dispute  or  controversy 
properly  within  the  jurisdiction  of 
said  district  court,  or  that  the  par- 
ties to  said  suit  have  been  im- 
properly or  collusively  made  or 
joined,  either  as  plaintiffs  or  de- 
fendants, for  the  purpose  of  creat- 
ing a  case  cognizable  or  removable 
under  this  chapter,  the  said  dis- 
trict court  shall  proceed  no  further 
therein,  but  shall  dismiss  the  suit 
or  remand  it  to  the  court  from 
which  it  was  removed,  as  justice 
may  require,  and  shall  make  such 
order  as  to  costs  as  shall  be  just." 

This  section  defines  the  duty  of 
the  District  Court  of  the  United 
States  when  it  shall  appear  to  its 
satisfaction  that  the  suit  does  not 
really  and  substantially  involve  a 
dispute  or  controversy  properly 
within  the  court's  jurisdiction. 
While  this  section  gives  the  court 
the  right  to  dismiss  a  suit  when 
that  situation  appears,  whether  the 
parties  raise  the  question  or  not, 
it  is  the  duty  of  the  defendant  to 
bring  the  matter  to  the  attention 
of  the  court,  in  some  proper  way, 
where  the  facts  are  known  upon 
which  a  want  of  jurisdiction  ap- 
pears.    Deputron  v.  Young,  134  U. 


S.  241,  251.  Under  the  former 
practice,  before  the  passage  of  the 
act  of  1875,  above  quoted,  it  was 
necessary  to  raise  the  issue  of 
citizenship  by  a  plea  in  abate- 
ment, when  the  pleadings  properly 
averred  the  citizenship  of  the  par- 
ties. Farmington  v.  Pillsbury,  114 
U.  S.  138,  143;  Little  v.  Giles,  118 
U.  S.  596,  604.  The  objection  may 
be  made  now  by  answer  before  an- 
SAvering  to  the  merits,  or  it  may 
be  made  by  motion.  Steiglcder  v. 
McQuestion,  198  U.  S.  141.  The 
statute  does  not  prescribe  any  par- 
ticular mode  by  which  the  question 
of  jurisdiction  is  to  be  brought  to 
the  attention  of  the  court,  and  the 
method  of  raising  the  question  may 
be  left  to  the  sound  discretion  of 
the  trial  judge.  Wetmore  v.  Ey- 
mer,  169  U.  S.  115,  121.  It  may 
be  raised  by  a  general  denial  in 
the  answer,  where  the  state  prac- 
tice permits  of  that  course.  Rob- 
erts v.  Lewis,  144  U.  S.  653.  In 
the  State  of  Connecticut,  under 
the  form  of  denial  contained  in 
this  answer,  the  answer  raised  the 
issue.  Sayles  v.  FitzGerald,  72 
Connecticut,  391,  396.  Moreover, 
the  parties  to  the  suit  regarded  the 
matter  as  at  issue  under  the  plead- 
ings, and  it  was  so  held  by  the 
court.  The  motion  of  the  plaintiff 
to  strike  out  the  motion  to  dismiss 
for  want  of  jurisdiction  was  based 
upon  the  ground  that  that  issue 
was  already  made  in  the  pleadings. 
The  question  was  properly  before 
the  court. 

It  is  also  insisted  that  the  court 
erred  in  itself  considering  tiie  tes- 
timony and  in  not  submitting  the 
issue  to  the  jury.  But  while  the 
court    might    have    submitted    the 


514  The  Answer.  [Chap.  V.. 

other  affirmative  and  material  allegations  made  by  the  plaintiff 
and  denied  by  the  defendant,  must  be  proved  by  the  plaintiff. 
The  record  showing  no  proof  or  finding  upon  this  essential 
point,  on  which  the  jurisdiction  of  the  Circuit  Court  depended, 
the  judgment  must  be  reversed,  with  costs,  for  want  of  juris- 
diction in  the  Circuit  Court,  and  the  case  remanded  to  that 
court,  which  may,  in  its  discretion,  either  dismiss  the  action  for 
want  of  jurisdiction,  or  set  asde  the  verdict  and  permit  the 
plaintiff  to  offer  evidence  of  the  citizenship  of  the  parties.  Con- 
tinental Ins.  Co.  V.  Rhoads,  119  U.  S.  237. 

Judgment  reversed,  and  case  remanded  to  the  Circuit  Court 
for  furtlier  proceedings  in  accordance  with  the  opinion  of  this 
court. 


BROWN  V.  CURTIS. 
Supreme  Court  of  California,  1900.     128  Cat.  193. 

Chipman,  C.''^ — Action  for  the  value  of  certain  nursery  trees 
sold  and  delivered  to  (?)  plaintiff's  assignors.  Defendants 
answered  by  general  denial  and  also  set  up  specially,  by  sep- 
arate answer,  certain  facts  alleging  the  failure  of  plaintiff's 
assignors  to  comply  with  the  terms  of  the  contract  under  which 
the  trees  were  delivered.  The  pleadings  were  not  verified.  The 
trial  was  by  a  jury  and  plaintiff  had  the  verdict.  Defendants 
appeal  from  the  judgment  and  from  the  order  denying  their 
motion  for  a  new  trial. 

It  is  claimed  by  appellant  that  there  was  no  evidence  intro- 
duced to  prove  an  assignment  or  transfer  to  plaintiff  of  the 
claims  sued  on. 

The  complaint  sets  forth  certain  claims  in  two  counts,  one  of 
which  alleges  the  sale  to  defendants  of  certain  fruit  trees  by 
one  H.  H,  Linville  and  an  assignment  to  plaintiff  of  the  claim, 

question    to    the   jury,   it    was   not  was  fully  heard  upon  that  subject. 

bound  to  do  so,  the  parties  having  Wetmore  v.  Eymer,  169  U.  S.  115, 

adduced   their   testimony,   pro    and  supra."     »     *     * 

con,   it    was    the    privilege    of    the  7  Part   of  the   opinion   reviewing 

court,  if  it   saw  fit,   to   dispose   of  the  evidence  omitted. 

the  issue  upon  the  testimony  which 


Sec.  2.]  New  Matter.  515 

and  the  other  count  alleges  a  sale  by  one  W.  J.  Linville  to  de- 
fendants and  an  assignment  to  plaintiff.  The  assignment  in 
each  instance  and  the  denial  thereof  raised  a  material  issue 
which  it  was  incumbent  on  plaintiff  to  establish  by  proof. 
(Read  v.  Buffum,  79  Cal.  77;  12  Am.  St.  Rep.  131;  Ford  v. 
Bushard,  116  Cal.  273.)  Respondent  contends  that  "the  as- 
signment is  not  the  cause  of  action,  but  only  the  right  of  plain- 
tiff to  sue,"  and,  quoting  from  California  Steam  Nav.  Co.  v. 
Wright,  8  Cal.  585,  claims  that  "the  want  of  legal  capacity  to 
sue  is  a  personal  disability,  and,  if  the  defendant  intends  to  set 
up  such  a  defense,  he  should  state  so  distinctly.  The  general 
denial  relates  to  some  other  facts  alleged  concerning  the  con- 
tract. The  general  issue  is  not  sufficient."  (Citing,  also.  White 
V.  Moses,  11  Cal.  70 ;  Bank  of  Shasta  v.  Boyd,  99  Cal.  604,  and 
some  other  cases.) 

Respondent  fails  to  distinguish  between  the  question  of  capac- 
ity and  the  question  of  right  to  sue.  The  capacity  is  one  thing, 
while  the  right  is  quite  another.  The  capacity  may  be  admitted, 
but  the  right  must  rest  upon  proof  of  assignment  and  must  be 
established  whatever  may  be  the  capacity  in  which  the  assignee 
sues.  *  *  *  It  was  incumbent  on  Brown  to  establish  his  right 
to  sue,  and  this  necessitated  proof  of  the  assignment  by  which 
alone  he  had  any  such  right.  It  was  as  necessary  for  Brown  to 
prove  this  fact  as  it  was  to  prove  the  indebtedness.  The  funda- 
mental error  of  respondent  was  in  assuming  what  he  now  urges 
in  his  brief — that  "the  question  of  assignment  only  goes  to  the 
capacity  to  sue  and  not  to  the  cause  of  action,  and  therefore  if 
defendants  wish  to  raise  the  question  of  assignment  they  must 
do  so  by  a  special  defense,  and  cannot  do  so  by  a  general 
denial. ' ' 

The  view  we  have  taken  makes  it  unnecessary  to  notice  ap- 
pellants' contention  that  the  evidence  was  insufficient  to  justify 
the  verdict;  the  evidence  may  not  be  the  same  at  the  second 
trial. 

It  is  advised  that  the  judgment  and  order  be  reversed  and  the 
cause  remanded. 

Judgment  reversed. 


516  The  Answer.  [Chap.  V. 

BAXTER  by  Curator  v.  ST.  LOUIS  TRANSIT  CO. 

Supreme  Court  of  Missouri,  1906.     198  Mo.  1. 

Valliant,  J. — Plaintiff,  a  minor,  received  personal  injuries 
in  a  collision  with  a  street  car  which  was  being  operated  by 
defendant  and  sues  to  recover  damages  for  the  injuries,  alleg- 
ing that  the  collision  was  the  result  of  the  negligent  operating  of 
defendant's  street  car.  He  recovered  a  judgment  for  $4,750, 
and  defendant  appealed. 

Before  entering  into  a  consideration  of  the  merits  of  the  case 
there  is  a  question  at  the  threshold  that  demands  our  attention. 

The  petition  alleges  that  the  plaintiff  is  a  minor  and  that  the 
St.  Louis  Trust  Company,  by  whom  as  his  curator  he-  sues,  is 
his  legally  appointed  and  duly  qualified  curator,  that  the  de- 
fendant is  a  corporation  operating  a  street  railroad,  then  it 
proceeds  to  state  the  cause  of  action.  The  answer  of  the  de- 
fendant was  a  general  denial  and  a  plea  of  contributory  negli- 
gence. At  the  trial  there  was  no  proof  of  the  appointment  of 
the  alleged  curator.  It  is  contended  by  defendant  that  the 
failure  of  proof  on  that  point  is  fatal  to  the  plaintiff's  right  of 
recovery. 

At  common  law  the  character  in  which  the  plaintiff  sued  was 
not  put  in  issue  unless  specifically  denied.  [1  Chitty  on  PI. 
(16  Am.  Ed.)  p.  467.]  In  such  ease  a  special  denial  was  in  the 
nature  of  a  plea  in  abatement.  [Stephens  on  PI.  (1894)  p.  467.] 
Such  a  plea,  if  sustained,  did  not  bar  the  cause  of  action,  but 
abated  that  suit.  The  character  in  which  the  plaintiff  assumes 
to  sue  is  entirelj^  distinct  from  the  cause  of  action  alleged ;  for 
example,  a  plaintiff  assuming  to  be  the  administrator  sues  to 
recover  a  debt  due  the  estate,  he  may  not  be  the  administrator 
and  therefore  not  entitled  to  maintain  the  suit,  yet  a  judgment 
that  the  plaintiff  in  that  suit  is  not  the  administrator  would  be 
no  bar  to  an  action  to  recover  the  same  debt  when  the  true  ad- 
ministrator should  sue.  And  that  is  as  true  under  our  Code 
of  Procedure  as  it  was  at  common  law.  In  so  far  as  the  science 
of  pleading  rests  on  sound  reason  for  its  rules  there  is  no  dif- 
ference between  our  system  and  the  system  of  common  law 
pleading,  the  conclusions  of  reason  and  common  sense  are  the 
same,  but  in  each  system  there  are  arbitrary  rules  and  the  differ- 
ence between  the  two  systems  appears  in  those  rules.     For  ex- 


Sec.  2.]  New  Matter.  51'? 

ample,  it  is  neither  illogical  nor  unreasonable,  nor  a  violation  of 
any  scientific  principle,  to  allow  a  defendant  to  plead  in  abate- 
ment of  the  suit  and  in  bar  of  the  action  at  the  same  time.    There 
is  nothing  inconsistent  or  contradictory  in  those  pleas  with  each 
other,  both  may  be  true  or  one  may  be  true  and  the  other  not, 
and  there  is  no  difficulty  in  shaping  the  judgment  to  suit  the 
facts  as  they  may  be  found  on  the  trial.    Yet  the  common  law 
rule  is  that  the  two  pleas  cannot  stand  together,  but  under  the 
Code  system  the  defendant  not  only  may  but  is  required  to 
plead  them  both  in  one  answer  if  he  intends  to  avail  himself  of 
both.     The  rule  on  this  point  is  thus  stated  in  Bliss  on  Code 
Pleading    (3   Ed.),   sec.   345:     "In  common  law  pleading  we 
have  the  rule  that  '  pleas  must  be  pleaded  in  due  order ; '  that  is, 
the  dilatory  pleas  must  be  first  made  and  disposed  of,  to  be 
followed  by  pleas  in  bar.     The  Code  requires  the  defendant 
either  to  demur  or  answer,  and  in  his  answer  he  is  allov/ed  to 
set  up  as  many  defenses  as  he  may  have.     Only  one  answer  is 
contemplated,   and   all  the   defenses  which  he   elects  to  make 
must  be  embraced  within  it."     Matters  in  abatement  and  mat- 
ters in  bar  are  as  essentially  different  under  the  one  system  as 
under  the  other,  and  the  effect  of  matters  in  abatement  is  the 
same  under  both  systems,  that  is,  if  the  plea  is  sustained  it 
abates  that  suit  without  affecting  the  cause  of  action,  the  only 
difference  is  that  at  common  law  it  is  called  a  plea  in  abatement 
and  must  be  disposed  of  before  defendant  pleads  to  the  merits 
of  the  action,  while  under  the  Code  it  goes  under  the  general 
name  of  defense  and  may  be  pleaded  in  the  same  answer  with 
a  plea  to  the  merits.     The  author  just  quoted,  discussing  the 
effect  of  an  insufficient  statement  in  the  petition  of  the  charac- 
ter in  which  the  plaintiff  sues,  and  holding  that  such  defect  is 
not  reached  by  a  general  demurrer,  says :    "It  is  but  reasonable, 
then,  that  the  statute  should  require  the  defendant,  if  he  ob- 
jects to  the  plaintiff's  demand  because  he  does  not  show  a  right 
to  appear  in  court,  to  base  his  objections  specifically  upon  that 
ground;  and  I  know  of  no  comprehensive  phrase  that  so  well 
describes  the  ground  of  objection  as  a  want  of  legal  capacity  to 
sue."     [Bliss  on  Code  PI.  (3  Ed.)   p.  620,  sec.  408.]     In  other 
words,  if  the  capacity  in  which  the  plaintiff  assumes  to  sue 
is  defectively  stated,  the  defect  cannot  be  reached  by  a  general 
demurrer,  which  goes  to  the  cause  of  action,  but  it  requires  a 
special  demurrer. 


518  The  Answer.  [Chap.  V. 

Pomeroy,  a  strong  friend  of  the  code  system,  after  first  point- 
ing out  the  distinction  between  a  plea  in  abatement  and  a  plea  in 
bar  in  respect  of  the  order  in  which  they  were  required  to  be 
pleaded,  says:  "There  are  in  the  new  procedure  no  such  di- 
visions and  classes.  Defenses  still  exist  of  the  same  essential 
nature  as  tliose  which  were  formerly  set  up  by  means  of  a  plea 
in  abatement,  and  a  judgment  thereon  in  favor  of  the  defendant 
does  not  forever  bar  the  plaintiff  from  the  further  prosecution  of 
his  demand."  [Pomeroy  Code  Rem.  (4  Ed.)  pp.  799-800.] 
The  learned  law-writer,  although  he  regards  the  Code  as  in 
itself  a  complete  system  depending  for  nothing  upon  the  com- 
mon law  (Id.  p.  541,  Sec.  409),  yet  in  the  words  just  quoted  he 
recognizes  fully,  as  it  is  recognized  at  common  law,  the  essential 
difference  between  matters  that  may  be  pleaded  to  abate  the  suit, 
and  matters  pleaded  to  defeat  the  cause  of  action,  the  only 
difference  between  the  Code  and  the  common  law  in  respect  to 
them  being  the  manner  and  the  order  in  which  they  are  pleaded 
and  the  issues  tried.  And  on  pages  813-14,  he  says:  "The 
non-joinder  of  necessary  parties  cannot  be  proved  under  the 
general  deuial.  *  *  *  The  defense  that  the  plaintiff  is  not 
the  real  party  in  interest  is  new  matter  *  *  *  and  in  an 
action  by  an  executor  or  administrator,  the  general  denial  does 
not  put  in  issue  the  plaintiff's  title  to  sue." 

As  we  have  already  above  shown,  when  a  plaintiff  sued  at 
common  law  in  a  representative  capacity,  as  executor  or  such 
like,  and  defendant,  without  any  denial  of  the  plaintiff's  alleged 
character,  filed  his  plea  to  the  merits  of  the  action  and  went  to 
trial,  he  was  presumed  to  have  admitted  the  character  assumed 
by  the  plaintiff. 

There  was  no  injustice  to  the  defendant  in  that  rule  of  plead- 
ing for  if  he  really  intended  to  question  the  matter  he  could  by 
a  special  plea  require  the  plaintiff  to  produce  the  proof.  It  is 
the  boast  of  the  advocates  of  the  Code  system  that  it  is  designed 
to  reach  more  quickly  the  merits  of  a  controversy  by  cutting 
away  from  the  unnecessary  forms  and  technicalities  of  the  com- 
mon law,  but  if  our  system  puts  tlie  plaintiff  to  such  proof  when 
it  is  not  specially  called  for  by  the  defendant's  answer  we  are 
more  formal  and  technical  than  were  our  common  law  prede- 
cessors.   *    *    * 

The  foregoing  are  all  the  decisions  on  this  question  in  this 


Sec.  2.]  New  Matter.  519 

State,  so  far  as  our  research  has  brought  them  to  our  notice.' 

Our  conclusion  is  that  under  sections  598,  599  and  602,  Re- 
vised Statutes,  1899,  when  a  plaintiff  assumes  to  sue  in  a  repre- 
sentati\e  capacity,  that  capacity  can  be  put  in  issue  in  two  ways 
only:  first,  if  in  the  body  of  the  petition  facts  sufficient  to  con- 
stitute the  capacity  are  not  stated,  the  issue  may  be  raised  by 
a  special  demurrer;  second,  if  the  facts  to  constitute  the  capacity 
are  sufficiently  stated,  they  may  be  put  in  issue  by  a  specific 
denial,  but  the  issue  is  not  raised  in  either  case  by  a  general 
demurrer^  or  a  general  denial. 

It  being  averred  in  the  petition  in  this  case  that  the  St.  Louis 
Trust  Company  was  the  lawfully  appointed  and  duly  qualified 
curator  of  the  plaintiff  and  there  being  no  specific  denial  of  that 
fact,  it  must  be  taken  as  admitted.  The  court  did  not  err  there- 
fore in  refusing  the  instructions  asked  by  defendant  in  the 
nature  of  a  demurrer  to  the  evidence  because  of  failure  of 
proof  on  that  point.^"    *     »     * 

Judgment  affirmed. 


II.     In  Discharge  or  Excuse. 
McKYRING  V.  BULL. 

Court  of  Appeals  of  New  York,  1857.     16  N.  Y.  297. 
The  complaint  alleges  that  the  plaintiff  entered  into  the  em- 

8  The  omitted  part  of  the  opin-  10  Apparently  the  Supreme  Court 
ion  reviewed  the  following  cases:  of  Missouri  treats  the  case  of  an 
Gilmore  v.  Morris,  13  Mo.  App.  action  by  an  administrator  on  a 
114;  State  v.  Price,  21  Mo.  434;  cause  of  action  formerly  belonging 
Cadmus  v.  Bridge  Co.,  15  Mo.  App.  to  the  intestate  as  standing  on  the 
86;  Kandolph  v.  Ey.,  18  Mo.  App.  same  basis  as  an  action  by  an  in- 
613;  Clowers  v.  Ry.,  21  Mo.  App.  fant  suing  by  guardian,  curator  or 
213;  Jones  v.  Steele,  36  Mo.  324;  next  friend.  Gross  v.  Watts,  206 
Porter  v.  Ey.,  60  Mo.  160;  Sher-  Mo.  373.  As  a  general  rule  the 
man  v.  Ey.,  72  Mo.  62;  Eogers  v.  administrator  takes  title  to  the 
March,  73  Mo.  64;  Holton  v.  Tow-  choses  in  action  of  the  intestate, 
ner  81  Mo.  360;  Taylor  v.  Pullen,  while  the  guardian  does  not  take 
152  Mo.   434.  title  to  the  choses  in  action  of  the 

9  But   see   Hamilton  v.  Mclndoo,  ward.     Ed. 
ante  p.  459. 


520  The  Answer,  [Chap.  V, 

ploy  of  the  defendant  on  the  12th  day  of  May,  1852,  and  con- 
tinued in  such  employment,  doing  labor  and  service  for  the 
said  defendant,  at  his  request,  until  the  3rd  day  of  May,  1854, 
and  avers  that  such  work,  labor  and  services  were  worth  the 
sum  of  $650.  It  concludes  as  follows :  ' '  That  there  is  now  due 
to  this  plaintiff,  over  and  above  all  payments  and  offsets,  on  ac- 
count of  said  work,  the  sum  of  one  hundred  and  thirty-four 
dollars,  which  said  sum  defendant  refuses  to  pay;  wherefore 
plaintiff  demands  judgment  in  this  action  for  the  said  last  men- 
tioned sum,  and  interest  from  the  fourth  day  of  May,  1854, 
besides  costs." 

The  answer  consists  simply  of  a  general  denial  of  all  the 
allegations  of  the  complaint. 

Upon  the  trial  before  Mr.  Justice  Clinton,  the  defendant  first 
offered  evidence  of  payment  as  a  defense  to  the  action,  which 
was  objected  to  and  excluded  on  the  ground  that  it  should  have 
been  pleaded.  He  then  offered  to  prove  partial  payment,  in 
mitigation  of  damages,  and  this  also  was  excluded  for  the  same 
reason.  The  jury  found  a  verdict  for  the  plaintiff  for  $135.75, 
for  which  judgment  was  entered,  and  the  defendant  having 
made  a  bill  of  exceptions,  the  judgment  was,  on  appeal,  affirmed 
by  the  Superior  Court  at  general  term.  The  defendant  appealed 
to  this  court. 

Selden,  J. — Although  the  Code  of  Procedure  has  abrogated 
the  common  law  S3''stem  of  pleading,  with  all  its  technical  rules, 
yet,  in  one  respect,  the  new  system  which  it  has  introduced  bears 
a  close  analogy  to  that  for  which  it  has  been  substituted.  The 
general  denial  allowed  by  the  Code  corresponds  very  nearly 
with  the  general  issue  in  actions  of  assumpsit  and  of  debt  on 
simple  contract,  at  common  law.  The  decisions  upon  the  sub- 
ject, therefore,  in  the  English  courts,  although  not  obligatory 
as  precedents  since  the  changes  introduced  by  the  Code,  will 
nevertheless  be  found  to  throw  much  light  upon  the  question 
presented  here. 

"While  the  general  issue,  both  in  assumpsit  and  debt,  was,  in 
theory,  what  the  general  denial  allowed  by  the  Code  is  in  fact, 
viz.,  a  simple  traverse  of  the  material  allegations  of  the  declara- 
tion or  complaint,  yet,  from  the  different  phraseology  adopted 
in  the  two  forms  of  action,  a  very  different  result  was  produced. 
The  declaration,  in  debt,  averred  an  existing  indebtedness,  and 


Sec.  2.]  New  Matter.  521 

this  amount  was  traversed  by  the  plea  of  nil  dehd}  in  the  pres- 
ent tense;  hence,  nothing  could  be  excluded  which  tended  to 
prove  that  there  was  no  subsisting  debt  when  the  suit  was  com- 
menced. In  assumpsit,  on  the  contrary,  both  the  averment  in 
the  declaration  and  the  traverse  in  the  plea  were  in  the  past, 
instead  of  the  present  tense,  and  related  to  a  time  anterior  to 
the  commencement  of  the  suit.  Under  non  assumpsit,  therefore, 
so  long  as  the  rule  of  pleading  which  excludes  all  proof  not 
strictly  within  the  issue  was  adhered  to,  no  evidence  could  be 
received  except  such  as  would  tend  to  show  that  the  defendant 
never  made  the  promise.  That  this  was  the  view  taken  of  these 
pleas,  in  the  earlier  cases,  is  clear. 

In  an  anonymous  case,  before  Lord  Holt  (1  Salk.  278)  it  was 
adjudged  "that,  in  debt  for  rent,  upon  nil  debet  pleaded,  the 
statute  of  limitations  may  be  given  in  evidence,  for  the  statute 
has  made  it  no  debt  at  the  time  of  the  plea  pleaded,  the  words 
of  which  are  in  the  present  tense."  Again,  in  Draper  v.  Glassop 
(1  Lord  Ray.  153),  the  same  judge  said:  "If  the  defendant 
pleads  non  assumpsit,  he  cannot  give  in  evidence  the  statute  of 
limitations,  because  the  assumpsit  goes  to  the  praeter  tense; 
but  upon  nil  debet  the  statute  is  good  evidence,  because  the 
issue  is  joined  per  verba  de  presenti." 

We  find,  however,  that  a  practice  afterwards  grew  up,  and 
came  at  last  to  be  firmly  established,  of  allowing,  under  the 
plea  of  non  assumpsit,  evidence  of  various  defenses,  which  ad- 
mitted all  the  essential  facts  stated  in  the  declaration  but 
avoided  their  effect  by  matter  subsequent,  such  as  payment, 
accord  and  satisfaction,  arbitrament,  release,  &c.  The  history 
and  progress  of  this  anomaly  is  easily  traced.  The  first  de- 
parture from  principle  was  in  relation  to  the  general  issue  in 
actions  of  indebitatus  assumpsit.  In  these  actions,  the  promise 
alleged  being  a  mere  legal  implication,  arising  upon  the  facts 
stated,  a  traverse  of  the  promise  was  of  course  equivalent  to  a 
traverse  of  the  allegations  upon  which  it  is  predicated.  Those 
allegations  were  regarded  as,  in  substance,  the  same  as  in  an 

1  While  payment  might  be  proved  avoided   it   by   subsequent   matter, 

without    a   special   plea   in    an    ac-  Hatton  v.   Morse,  3   Salk.   273    (B. 

tion    of   debt,    a   plea    of   payment  E.  1702);  Brown  v.  Cornish,  1  Ld. 

was  not   thought   objectionable   as  Ray.   217.     The    same   explanation 

amounting  to  the  general  issue  be-  was  repeated  in  Carr  v.  Hinchliffe, 

cause    it    confessed    the    debt    and  4  B.  &  C.  547,   (1825). 


522  The  Answer,  [Chap.  V. 

action  of  debt  upon  simple  contract;  and  hence  the  courts  con- 
cluded that  a  plea  which  put  them  in  issue  should  have  the 
same  effect  as  the  plea  of  nil  delet.  That  this  was  the  reasoning 
originally  resorted  to  is  plain  from  some  of  the  older  cases  on 
the  subject.  In  Beckford  v.  Clarke  (1  Sid.  236),  which  was  an 
action  of  assumpsit  brought  upon  a  special  promise  to  secure 
goods  from  perils,  those  of  the  sea  excepted,  the  Court  of  King's 
Bench  held  that  in  assumpsit  in  fact,  upon  non  assumpsit 
pleaded,  a  release  could  not  be  given  in  evidence  as  a  defense, 
but  on  assumpsit  in  law  it  might.  So  in  the  case  of  Fits  v. 
Freestone  (1  Mod.  210)  it  was  held  that,  "In  an  action  grounded 
upon  a  promise  in  law,  payment  before  the  action  brought  is 
allowed  to  be  given  in  evidence  upon  non  assumpsit;  but  when 
the  action  is  grounded  upon  a  special  promise,  then  payment  or 
any  other  legal  discharge  must  be  pleaded." 

But,  notwithstanding  the  distinction  adverted  to  in  these 
cases,  the  admission  of  the  evidence,  even  in  actions  of  indebi- 
tatus assumpsit,  was  a  plain  departure  from  the  issue  upon  non 
assumpsit,  which  was,  in  terms,  that  the  defendant  had  not 
promised;  a  departure,  however,  supposed  to  be  justified  as  a 
sacrifice  of  form  to  substance.  But  the  courts  having  already 
sacrificed  substance  to  form,  by  allowing  an  action  of  debt  to 
be  converted  into  assumpsit  by  the  addition  of  a  mere  fictitious 
promise,  had  imposed  upon  themselves  the  necessity  of  adhering 
to  this  form.  By  disregarding  it,  a  manifest  incongruity  in 
pleading  was  produced.  Tested  by  the  language  of  the  record, 
there  was  no  difference  in  the  issue  formed  by  the  plea  of  non 
assumpsit,  whether  the  promise  was  express  or  implied.  The 
courts,  therefore,  lost  sight,  after  a  time,  of  the  distinction  upon 
which  special  defenses  were  originally  admitted  in  actions  of 
indebitatus  assumpsit  alone,  and,  looking  only  at  the  record, 
took  another  stride,  and  admitted  evidence  of  payment,  release, 
arbitrament,  &c.  under  non  assumpsit,  without  regard  to  the 
nature  of  the  promise. 

To  justify  this  a  new  theory  was  necessary  and  we  find  it 
broached  by  an  early  writer.  (Gilb.  C.  P.  63.)  It  was,  that  the 
gist  of  the  action  of  assumpsit  was  the  fraud  or  deceit  practiced 
by  the  defendant  in  not  performing  his  promise ;  and  that  this 
was  put  in  issue  by  the  plea  of  non  assumpsit.  Hence,  any  evi- 
dence showing  that  there  was  no  existing  obligation  at  the  com- 
mencement of  the  suit,  and,  consequently,  no  fraud  which  was 


Sec.  2.]  New  Matter.  523 

injurious  to  the  plaintiff,  would  support  the  plea.  The  same 
reasoning  is  also  adopted  by  a  later  writer  upon  pleading. 
(Lawes  on  PL,  520,  521.)  It  is,  however,  manifestly  false  and 
illogical.  Fraud  or  deceit  never  constituted  the  gist  of  the 
action.  On  the  contrary,  it  has  ever  been  held  that  fraud  need 
not  be  alleged,  and,  if  alleged,  need  not  be  proved.  All  the 
other  theories,  invented  to  account  for  the  anomaly,  were  equally 
fallacious. 

These  errors  proved,  in  their  consequences,  subversive  of 
some  of  the  main  objects  of  pleading.  They  led  to  surprises 
upon  the  trial,  or  to  an  unnecessary  extent  of  preparation.  The 
courts,  however,  found  it  impossible  to  retrace  their  steps,  or  to 
remedy  this  and  other  defects  in  the  system  of  pleading,  with- 
out authority  from  parliament.  This  authority  was  at  length 
conferred  by  the  act  of  3d  and  4th  William  IV.,  ch.  42,  §  1,  and 
the  judges  in  Hilary  term,  thereafter,  adopted  a  series  of  rules, 
one  of  which  was  to  correct  the  errors  which  have  been  adverted 
to.  (2  Cromp.  &  Mees.  10.)  The  first  rule  adopted,  under  the 
head  of  assumpsit,  provided  in  substance  that  the  plea  of  non 
assumpsit  should  operate  where  the  promise  was  express,  as  a 
denial  of  the  promise,  and,  where  it  was  implied,  of  the  matters 
of  fact  upon  which  the  promise  was  founded. 

The  object  of  this  rule  was  to  restore  pleading  in  assumpsit 
to  its  original  logical  simplicity.  It  was  obviously  intended  as 
a  mere  correction  of  previous  judicial  errors.  It  interprets  the 
plea  of  non  assumpsit  strictly  according  to  its  terms,  and  thus 
plainly  indicates  that  the  courts  had  erred  in  departing  from 
those  terms.  That  this  was  the  view  of  the  judges,  is  shown  by 
the  different  course  taken  in  regard  to  the  plea  of  nil  debet. 
As  this  plea,  construed  according  to  its  terms,  included  every 
possible  defense  within  the  issue  which  it  formed,  the  judges 
did  not  attempt  to  change  the  import  of  those  terms,  but  abro- 
gated the  plea.  Rule  two,  under  the  head  of  "Covenant  and 
Debt,"  provides  that  "The  plea  of  nil  debet  shall  not  be  allowed 
in  any  action;"  and  rule  three  substitutes  the  plea  of  nunquam 
indebitatus  in  its  place.  Thus  the  whole  practice  which  had  con- 
tinued for  centuries,  of  receiving  evidence  of  payment,  and 
other  special  defenses  under  the  plea  of  nil  debet  and  non  as- 
sumpsit, was  swept  away. 

There  are  several  inferences  to  be  drawn  from  this  brief  re- 
view, which  have  a  direct  bearing  upon  our  new  and  unformed 


524  The  Answer.  [Chap.  Y. 

system  of  pleading  in  this  state.  The  first  is,  that  no  argument 
in  favor  of  allowing  payment,  or  any  other  matter  in  confession 
and  avoidance,  to  be  given  in  evidence  under  a  general  denial, 
can  be  deduced  from  the  former  practice  in  that  respect,  as 
this  practice  has  been  abandoned  in  England,  not  only  as  pro- 
ductive of  serious  inconvenience,  but  as  a  violation  of  all  sound 
rules  of  interpretation. 

A  second  inference  is  that,  in  regard  to  pleading,  it  is  indis- 
pensable to  adhere  to  strict  logical  precision  in  the  interpreta- 
tion of  language.  The  anomaly  which  has  been  referred  to  was 
wholly  produced  by  the  slight  deviation  from  such  precision  in 
the  action  of  indehitatus  assumpsit  which  has  been  pointed  out. 

But  the  most  important  inference  to  be  deduced  from  the 
historical  sketch  just  given  consists  in  an  admonition  to  adhere 
rigidly  to  that  rule  of  pleading  which  permits  a  traverse  of  facts 
only,  and  not  of  legal  conclusions ;  and  this  brings  us  to  the  pivot 
upon  which  the  point  under  consideration  must  necessarily 
turn.  The  counsel  for  the  defendant  insists  that,  as  the  answer 
controverts  every  allegation  of  the  complaint,  it  puts  in  issue 
the  allegation  with  which  it  concludes,  viz.,  that  there  was  due 
to  the  plaintiff  at  the  commencement  of  the  suit,  over  and  above 
all  payments,  &c.,  the  sum  of  $134.  But  this  allegation  is  a 
mere  legal  conclusion  from  the  facts  previously  stated.  Its 
nature  is  not  changed  by  the  addition  of  the  words  "over  and 
above  all  payments."  No  new  fact  is  thereby  alleged.  The 
plaintiff  voluntarily  limits  his  demand  to  a  sum  less  than  that 
to  which,  under  the  facts  averred,  he  would  be  entitled. 

Were  courts  to  allow  allegations  of  this  sort  to  be  traversed, 
they  would  fall  into  the  same  difficulty  which  existed  in  regard 
to  the  plea  of  nil  debet,  and  which  led  the  judges  in  England  to 
abolish  that  plea.  It  would  be  impossible,  under  such  a  rule,  in 
a  great  variety  of  cases,  to  exclude  any  defense,  whatever,  if 
offered  under  an  answer  containing  a  general  denial.  In  Eng- 
land, as  we  have  seen,  after  centuries  of  experience,  it  has  been 
found  most  conducive  to  justice  to  require  the  parties  virtually 
to  apprise  each  other  of  the  precise  grounds  upon  which  they 
intend  to  rely;  and  the  system  of  pleading  prescribed  by  the 
Code  appears  to  have  been  conceived  in  the  same  spirit.  It 
was  evidently  designed  to  require  of  parties,  in  all  cases,  a 
plain  and  distinct  statement  of  the  facts  which  they  intend  to 
prove;  and  any  rule  which  would  enable  defendants,  in  a  large 


Sec.  2.]  New  Matter.  525 

class  of  cases  to  evade  this  requirement,  would  be  inconsistent 
with  this  design. 

The  case  of  Van  Gieson  v.  Van  Gieson  (12  Barb.  S.  C.  R. 
520), 2  subsequently  affirmed  in  this  court,  contains  nothing  in 
opposition  to  the  doctrine  here  advanced.  That  case  simply  de- 
cided that  where  the  complaint  contained  an  averment  of  non- 
payment, a  plea  of  payment  formed  a  complete  issue.  That  pay- 
ment having  been  denied  in  the  complaint,  it  was  unnecessary 
to  repeat  that  denial  in  a  reply.  My  conclusion  therefore  is, 
that  neither  payment  nor  any  other  defense,  which  confesses 
and  avoids  the  cause  of  action,  can  in  any  case  be  given  in  evi- 
dence as  a  defense  under  an  answer  containing  simply  a  gen- 
eral denial  of  the  allegations  of  the  complaint. 

The  next  question  is,  whether  evidence  of  payment  either  in 
whole  or  in  part,  is  admissible  in  mitigation  of  damages.  As 
the  Code  contains  no  express  rule  on  the  subject  of  mitigation, 
except  in  regard  to  a  single  class  of  actions,  this  question  can- 
not be  properly  determined  without  a  recurrence  to  the  prin- 
ciples of  the  common  law.  By  those  principles,  defendants  in 
actions  sounding  in  damages  were  permitted  to  give  in  evidence, 
in  mitigation,  not  only  matters  having  a  tendency  to  reduce  the 
amount  of  the  plaintiff's  claim,  but  in  many  cases  facts  showing 
that  the  plaintiff  had  in  truth  no  claim  whatever.  It  was  not 
necessarily  an  objection  to  matter  offered  in  mitigation,  that  if 

properly  pleaded  it  would  have  constituted  a  complete  defense. 
*    *    * 

My  conclusion,  therefore,  is,  that  section  one  hundred  and 
forty -nine  should  be  so  construed  as  to  require  the  defendants, 
in  all  cases,  to  plead  any  new  matter  constituting  either  an 
entire  or  partial  defense,  and  to  prohibit  them  from  giving 
such  matter  in  evidence  upon  the  assessment  of  damages  when 
not  set  up  in  the  answer.  Not  only  payment,  therefore,  in 
whole  or  in  part,^  but  release,  accord  and  satisfaction,  arbitra- 

8  In   the   case   of  Van   Giesen   v.  mon  law  the  plea  of  payment  may 

Van  Giesen,  10  N.  Y.  316,   (1852),  not  have  been  a  specific  traverse, 

it  was  held  that  since  non  payment  and  that  its  form  led  to  the  notion 

was    a   material    allegation   in   the  that  it  was  an  affirmative  plea? 
complaint   a  plea   of  payment  was  3  But  see  Quinu  v.  Lloyd,  41  N. 

a  denial  and  not  new  matter.     The  Y.   349,    (1869),   to   the   effect   that 

same  view  was  taken  in  Frisch  v.  whore  the  action  is  brought  for  a 

Caler,   21   Cal.   71    (1862).     Quaere  balance,    the    amount    is    in    issue 

whether  at  an  early  period  at  com-  under   the  general   denial. 


526  The  Answer.  [Chap.  V. 

ment,  &c.,  which  may  still,  for  aught  I  see,  be  made  available 
in  England  in  mitigation  of  damages,  without  plea,  must  here 
be  pleaded.  In  this  respect,  our  new  system  of  pleadings  under 
the  Code  is  more  symmetrical  than  that  prescribed  by  the  recent 
rules  adopted  by  the  English  judges. 

The  judgment  of  the  Superior  Court  of  Buffalo  should  be 
affirmed. 


BRIDGES  V.  PAIGE. 

Supreme  Court  of  California,  1859.     13  Col.  640. 

Baldwin,  J. — This  suit  was  brought  as  on  a  quantum  vale- 
bant, for  professional  services  as  attorneys.  The  complaint 
claimed,  among  other  charges,  a  sum  of  money  due  for  the 
conduct  of  a  suit  of  Paige  v.  O'Neill.  The  answer  denied  the 
value  of  the  services  as  charged.  The  defendant  proposed  to 
show  by  a  witness — one  of  the  plaintiffs — that  they  did  not  per- 
form the  legal  services  rendered  by  them  in  the  case  of  Paige 
V.  O'Neill  with  ordinary  care,  diligence,  or  reasonable  skill, 
but  that  they  performed  said  services  negligently  and  unskill- 
fully,  and  that,  by  reason  of  such  unskillfulness  and  negligence, 
the  case,  which  is  now  on  appeal  in  the  Supreme  Court,  is  in 
great  danger  of  being  reversed.  The  defendant's  counsel  pro- 
posed to  show  the  above  facts  by  an  examination  of  the  witness 
in  connection  with  the  judgment  roll  in  said  case,  the  statement 
on  appeal,  and  by  all  the  papers  on  file  in  the  said  action ;  and 
the  said  defendant's  counsel  further  proposed  to  show,  after  the 
said  examination  was  concluded,  touching  the  unskillfulness  and 
negligence  on  their  part  in  managing  and  conducting  said  cause, 
that  their  services  were  not  reasonably  worth  the  amount 
claimed  in  the  complaint.  But  the  Court  refused  to  permit  or 
allow  the  defendant's  counsel  to  go  into  said  examination,  and 
refused  to  permit  the  defendant's  counsel,  either  by  an  exam- 
ination of  the  witness  or  by  an  examination  of  the  judgment 
roll,  to  show  that  plaintiffs  had  been  guilty  of  any  unskillful- 
ness or  negligence  whatever. 

One  of  the  reasons  given  for  this  ruling  is,  that  this  matter  is 
not  set  up  in  the  answer.     It  seems  to  be  supposed  that  this 


Sec.  2.]  New  IVIatter.  527 

was  new  matter,  which  should  have  been  aflBrmatively  pleaded. 
The  rule  invoked,  however,  does  not  apply  to  this  case.  Any- 
thing which  shows  that  the  plaintiff  has  not  the  right  of  re- 
covery at  all,  or  to  the  extent  he  claims,  on  the  case  as  he  makes 
it,  may  be  given  in  evidence  upon  an  issue  joined  by  an  allega- 
tion in  the  complaint,  and  its  denial  in  the  answer.  Where, 
however,  something  is  relied  on  by  the  defendant  which  is  not 
put  in  issue  by  the  plaintiff,  then  the  defendant  must  set  it  up. 
That  is  new  matter — that  is,  the  defendant  seeks  to  introduce 
into  the  case,  a  defense  which  is  not  disclosed  by  the  pleadings. 
This  case  is  a  good  illustration ;  the  plaintiffs  aver  tliat  the 
defendant  is  indebted  to  them  in  the  sum  of,  say  fifteen  hundred 
dollars,  for  services  rendered ;  that  he  is  indebted  to  this  amount 
because  this  was  the  value  of  these  services.  The  defendant 
denies  that  he  is  indebted  at  all,  and  denies,  further,  that  the 
services  were  of  the  value  charged.  He  proposes  to  show  that 
they  were  not  of  this  value.*  He  can  do  this  by  any  legal  proof, 
and  he  is  not  bound  to  set  out  his  proofs  in  his  pleading.  Facts, 
and  not  the  evidence  of  facts,  are  required  to  be  pleaded.  What- 
ever, therefore,  had  a  legal  tendency  to  prove  that  these  services 
were  worth  the  sum,  was  competent  for  plaintiffs,  as  the  nature 
of  the  suit,  its  difficulty,  the  amount  involved,  the  skill  required, 
the  skill  employed,  and  the  like.  So  the  defense  had  a  right  to 
prove  these  same  general  matters,  or  the  negation  of  them,  as 
for  example,  that  this  was  a  plain  case,  requiring  but  little 
labor  or  skill,  learning,  or  time;  or  if  it  required  skill  and  at- 
tention, that  these  were  not  bestowed.  The  value  of  a  lawyer's 
services  depends  upon  his  skill  and  learning,  and  the  attention 
he  gives  to  the  business  of  the  client.  It  is  evident,  therefore, 
that  proof  of  his  skillful  conduct  of  his  case,  or  of  his  negligent 
and  unskillful  treatment  of  it,  is  an  important  inquiry.  It  does 
not  follow  by  any  means,  that  because  a  trial  results  in  a  verdict 
for  the  client,  that  there  has  been  no  negligence  in  the  attorney. 
In  consequence  of  the  negligence,  the  client  may  have  been  put 
to  great  trouble  and  expense,  though,  by  accident  or  otherwise, 
he  happened  to  gain  the  case ;  and  though  the  Court  below  may 
have  decided  on  the  trial  of  a  case  that  errors  negligently  com- 

4  In  such  a  case  the  plaintiff  has       able  care  and  skill,   Harrington  v. 
the  burden  of  establishing  that  the       Priest,   104   Wis.  362,   (1899). 
services  were  rendered  with  reason- 


528 


The  Answer.  [Chap.  V. 


mitted  were  not  fatal,  yet  the  defendant  might  show,  when  sued 
for  fees  by  the  attorney,  that  the  Judge  was  mistaken  in  thus 
holding.     Besides  a  ease  may   be  negligently  conducted  even 
when  it  is  not  eventually  lost  by  neglect.    It  may  put  the  client 
to  great  trouble,  expense,  and  delay,  to  get  rid  of  blunders  of 
his  lawyer.    If,  for  example,  an  attorney  should,  by  his  neglect 
consent  to  a  bill  of  exceptions  full  of  errors  and  misstatements, 
and  raising  unnecessarily  many  difficult  and  embarrassing  ques- 
tions of  law  for  revision  in  the  Appellate  Court,  which  questions, 
as  the  case,  in  fact,  was  presented  below,  did  not  arise,  no  one 
would  pretend,  that  though  the  cause  was,  after  long  delay  and 
much  loss,  gained  in  the  Supreme  Court,  the  attorney  would 
not  be  amenable  to  the  charge  of  neglect;  or  if  the  attorney 
suffered  testimony  to  be  introduced  plainly  inadmissible,  and 
the  client  was  put  to  the  expense  and  trouble  of  summoning 
many  witnesses  to  counteract  it,  though  he  at  length  did  so  suc- 
cessfully, the  same  objection  would  lie;  and  in  both  these  in- 
stances, the  Attorneys  would  be  held  entitled  to  a  less  sum  on 
quanUmi  meruit,  than  if  a  contrary  course  had  been  pursued. 
Wliat  particular  errors,  if  any,  were  committed  on  the  trial  of 
Paige  V.  O'Neill,  or  what  particular  acts  of  negligence  done, 
were  not  disclosed,  the  Court  refusing  to  hear  any  testimony  on 
that  subject.     We  have  not  the  record  of  that  case  before  us, 
and  cannot  look  into  it.     It  seems  that  the  judgment  of  the 
Court  below  was  partially  affirmed  in  this  Court  on  appeal,  but 
not,   we  believe,  before   this   trial  below,   nor   does   it   appear 
whether  the  matters  of  alleged  negligence  proposed  to  be  proven 
were  considered  here.     Indeed,  we  cannot  look  into  any  record 
before  us,  not  legally  offered  as  proof,  for  any  purpose  of  the 
application  of  the  facts  of  that  record  to  any  other  case  as  evi- 
dence in  the  latter  case. 

It  may  be  that  the  record  of  Paige  v.  O'Neill  showed  no  negli- 
gence; and  the  rulings  of  the  learned  Judge  below,  on  the 
motion  for  a  new  trial,  would  seem  at  the  first  blush  to  establish 
this  fact ;  but  we  cannot  know,  in  the  face  of  the  offer  to  prove 
the  contrary,  that  the  defendant  would  necessarily  have  been 
unsuccessful;  nor  do  we  understand  from  the  broad  proffer  of 
proof,  that  the  negligence  imputed  was  confined  to  errors  as 

shown  by  the  record. 

Judgment  reversed. 


Sec.  2.]  New  Matter.  529 

SCOTT  V.  MORSE. 

Supreme  Court  of  Iowa,  1880.     54  Iowa  732. 

The  petition  of  plaintiff  alleges  in  substance  that  in  the  fore- 
part of  the  year  1878,  as  a  member  of  the  firm  of  Montgomery 
&  Scott,  attorneys  at  law,  the  plaintiff,  at  the  request  of  defend- 
ants, rendered  professional  services  to  them  about  the  prepara- 
tion of  a  petition  for  rehearing  in  a  case  entitled  Grouse  v. 
Morse,  pending  in  the  supreme  court,  which  services  were  Avorth 
$300;  that  afterwards,  on  the  fourteenth  day  of  April,  1878,  the 
firm  of  Montgomery  &  Scott  was  dissolved,  and  the  said  claim 
was  assigned  to  plaintiff  and  became  his  property.  The  plain- 
tiff demands  judgment  for  $300  and  interest.  The  defendants 
filed  an  answer  denying  all  the  allegations  of  the  petition.  The 
cause  was  tried  to  a  jury  and  a  verdict  was  returned  for  the 
plaintiff  for  $134.37.  The  motion  for  a  new  trial  was  overruled, 
and  judgment  was  entered  upon  the  verdict.  The  defendants 
appeal. 

Day,  J.  It  is  claimed  by  the  defendants  that  B.  F.  Mont- 
gomery, a  member  of  the  firm  of  Montgomery  &  Scott,  agreed 
that  his  firm  should  render  for  defendants  the  services  in  ques- 
tion without  charge ;  and  it  is  insisted  that  there  is  no  contradic- 
tion of  the  testimony  of  Montgomery  that  he  agreed  on  behalf 
of  his  firm  that  the  services  should  be  rendered  without  compen- 
sation. It  is  claimed  that  upon  this  branch  of  the  case  the  ver- 
dict is  opposed  to  the  uncontradicted  testimony,  and  therefore  is 
not  supported  by  the  evidence.  The  only  pleading  interposed 
by  the  defendants  is  a  general  denial  of  all  the  allegations  of 
the  petition.  This  denial  simply  puts  in  issue^  the  fact  of  the 
rendition  of  the  services,  their  value,  and  that  the  claim  therefor 
has  been  assigned  to  the  plaintiff.  If  the  defendants  intended 
to  rely  upon  the  fact  that  there  was  an  agreement  that  the  serv- 
ices in  question  should  be  rendered  without  compensation,  such 
defense  should  have  been  specially  pleaded.  "Any  defense 
which  admits  the  facts  of  the  adverse  pleading,  but  by  some 

B  Compare   Bussey   v.   Barnett,   9  therefore    need    not    be    specially 

M.   &   W.   312,    (1842),   that   a   de-  pleaded  under  the  Hilary  Rules, 
fence  that  the  goods  had  been  paid  And,   so    in    Starrett    v.    Mullen, 

for  on  delivery  was  negative  and  148   Mass.    570,    (1889). 


530  The  Answer.  [Chap.  V. 

other  matter  seeks  to  avoid  their  legal  effect,  must  be  specially 
pleaded."    Code  §  2718. 

The  case  falls  fully  within  the  principle  of  Parker  v.  Hendrie, 
3  Iowa  263.  In  that  case,  as  in  this,  evidence  was  introduced 
and  instructions  were  given  on  an  issue  not  tendered  by  the 
pleadings.  A  verdict  was  returned  for  the  plaintiff,  which  the 
defendant  moved  to  set  aside  on  the  ground  that  it  was  against 
the  law  and  evidence.  The  motion  was  overruled.  On  the  ques- 
tion presented  the  following  language  is  employed:  "The  testi- 
mony as  to  the  agreement  to  return  the  machine,  and  the  instruc- 
tions based  thereon,  relate  to  an  issue  not  made,  or  attempted 
to  be  made,  by  the  pleadings.  The  testimony  was,  therefore,  im- 
material. To  justify  the  granting  of  a  new  trial,  on  the  ground 
that  the  verdict  is  against  the  weight  of  the  evidence,  such  want 
of  evidence  must  relate  to  a  material  issue,  legitimately  made  by 
the  pleadings.  It  is  the  issues  of  fact  made  by  the  pleadings 
which  the  jury  are  to  determine,  and  not  others  or  different 
ones."     This  case  we  regard  as  decisive  of  the  question  now 

involved. 

,  Affirmed. 


CORBY,  EX'RX  v.  WEDDLE. 

Supreme  Court  of  Missouri,  1874.     57  Mo.  452. 

This  was  an  action  on  a  promissory  note,  alleged  to  have  been 
executed  by  the  defendant  to  one  Glasgow,  and  by  him  endorsed 
for  value  and  before  maturity  to  the  plaintiff's  intestate.  The 
answer  denies  the  execution  of  the  note  and  was  duly  verified 
by  affidavit.6 

At  the  trial  the  defendant's  evidence,  which  was  admitted 
over  objection,  tended  to  show  that  he  could  read  writing  to  a 
very  limited  extent,  and  that  the  note  was  represented  to  him 
as  a  mere  agency  contract,  and  that  he  signed  it  without  knowl- 
edge of  its  true  character.  The  court  instructed  the  jury  that  if 
the  defendant  was  induced  by  such  false  pretense  to  sign  the 

6  This  answer  was  based  on  the  by  affidavit,  to  put  in  issue  the 
provision  of  the  Missouri  Code.  execution  of  an  instrument  sued 
requiring  a  specific  denial,  verified      on.      See   Mo.   E.   S.   1919,   §    1415. 


Sec.  2.]  New  Matter.  531 

note,  the  plaintiff  could  not  recover.     There  was  a  verdict  and 
judgment  for  defendant,  and  the  plaintiff  sued  out  a  writ  of 


error.' 

VoRiES,  J.  *  *  *  It  is  also  contended  by  the  plaintiff, 
that  the  defense  of  the  defendant,  as  shown  by  the  evidence, 
was  improperly  admitted  under  the  pleadings;  that  the  answer 
only  denied  the  execution  of  the  note,  and  that  evidence  to  show 
that  his  name  had  been  procured  to  the  note,  without  his  con- 
sent, by  fraudulent  practices,  could  not  properly  be  admitted 
under  such  an  answer;  that  in  order  to  admit  such  evidence, 
the  defendant  should  have  admitted  the  execution  of  the  note 
and  set  up  the  fraud  in  avoidance  of  a  recovery  thereon.  This 
position  I  think  is  untenable.  The  general  rule  is,  that  when  a 
deed  is  void  ah  initio,  and  not  merely  voidable,  the  plea  of  non 
est  factum  is  proper;  and  the  facts  showing  the  instrument  to 
be  void,  may  be  given  in  evidence  to  sustain  such  plea.^  (Bot- 
tomley  v.  The  United  States,  1  Story  135;  3  Phillips  on  Evi- 
dence, top  page  389.)     *    *    * 

Judgment  affirmed. 


SCHWARZ  V.  OPPOLD. 
Court  of  Appeals  of  New  York,  1878.     74  N.  Y.  307. 

Rapallo,  J. :®  *  *  *  The  only  points  before  us  are  those 
which  arise  on  the  exceptions  taken  at  the  trial. 

The  exception  mainly  relied  upon  was  to  the  admission  of  the 
evidence  of  the  defendant  Wilhelm  Oppold  to  the  effect  that  the 
words  "with  interest"  which  appear  at  the  end  of  the  note 

7  statement  condensed  and  part  and  a  writing  excusably  and  jus- 
of  the  opinion  omitted.  tifiably  executed  by  the  one  which, 

8  See  George  v.  Tate,  102  U.  S.  through  the  deceit  of  the  other, 
564;  Dorr  v.  Mounsell,  13  Johnson,  does  not  express  the  agreement  of 
430,  post  576;  Whipple  v.  Brown,  the  parties.  This  distinction  has 
225  N.  Y.  237,  (1919),  in  which  been  expressed  thus:  'Fraud  in 
it   is   said:  the    factum    renders    the    writing 

"There  is  a  material  and  mani-  void  at  law,  whereas  fraud  in  the 

fest  distinction  between  a  meeting  treaty  renders  it  voidable  merely." 

of    the    minds    of    parties    through  9  Statement  and  part  of  the  opin- 

deceit  on  the  part  of  one  of  them,  ion   omitted. 


532  The  Answer.  [Chap.  V. 

given  in  evidence  were  not  there  when  he  signed  it.     The  ob- 
jection taken  was  was  that  no  such  defense  was  pleaded. 

The  complaint  set  forth  a  note  payable  on  demand  with  inter- 
est. The  answer  of  the  maker,  Wilhelm  Oppold,  contained  a 
general  denial.  The  note  put  in  evidence  purported  to  be  pay- 
able with  interest  as  alleged  in  the  complaint.  It  was  clearly 
competent  for  the  defendant  under  his  general  denial  to  contro- 
vert this  proof  by  showing  that  the  note  had  been  altered  since 
its  execution  by  adding  the  words  "with  interest."  This  altera- 
tion, which  was  established  by  the  finding  of  the  jury,  clearly 
destroyed  the  effect  of  the  note  as  evidence,  and  precluded  any 
recovery  thereon  in  the  absence  of  sufficient  explanation  of  the 
alteration.    *    *    * 

Judgment  affirmed. 


BUTTERMERE  v.  HAYES. 
Court  of  Exchequer,  1839.     5  M.  &  W.  456. 

Parke,  B.  The  question  which  the  court  reserved  for  con- 
sideration was,  whether,  in  an  action  on  an  executory  contract 
concerning  an  interest  in  land,  the  plaintiff  was  required,  on  a 
plea  of  non  assumpsit,  to  prove  a  memorandum  in  writing  as 
required  by  the  4th  section  of  the  Statute  of  Frauds.  Upon  this 
point,  depending  upon  the  construction  of  the  New  Rules,  a 
considerable  difference  of  opinion  has  prevailed  in  the  profession 
and  the  Court  have  therefore  been  desirous  to  give  the  question 
full  consideration. 

There  is  no  doubt  that  before  the  new  rules  of  pleading,  such 
proof  would  have  been  necessary.  But  the  1st  and  3rd  of  these 
rules,  in  actions  of  assumpsit,  have  limited  the  operation  of  the 
plea  of  non  assumpsit.  Allegations  in  the  declaration  are  now 
admitted  by  that  plea,  which  formerly  it  required  the  plaintiff 
to  prove ;  and  defenses  are  now  excluded  by  the  new  rule,  which 
formerly  might  have  been  proved  under  it.  Before  the  New 
Rules,  under  the  plea  of  non  assumpsit,  the  plaintiff  was  re- 
quired to  prove  all  the  material  averments  in  the  declaration, 
and  not  merely  the  making  of  the  contract  declared  on :  and  the 
defendant  was  at  liberty  not  only  lo  disprove  all  the  afiegations 


Sec.  2.]  New  IMattee.  533 

of  the  declaration,  but  to  show  by  evidence  consistent  with  them, 
that  the  contract,  though  actually  broken,  was  void  in  law,  and 
even  to  prove  defenses,  such  as  release,  or  accord  and  satisfac- 
tion, which  showed  that  though  a  cause  of  action  had  once  sub- 
sisted, it  was  put  an  end  to  before  the  commencement  of  the 
suit.  The  object  of  the  New  Rules  was  clearly  to  remove  this 
inconvenience,  and  with  that  view  the  first  and  third  of  tliese  in 
assumpsit  restrict  the  general  issue,  by  limiting  the  operation  by 
which  it  formerly  put  in  issue  all  the  averments  in  the  declara- 
tion in  actions  on  special  contracts,  and  by  confining  it  to  a 
denial  of  one  of  them  only,  namely,  of  the  contract  declared  on, 
and  by  excluding  all  defenses  which  might  formerly  have  been 
made  by  disproving  all  the  other  allegations  of  the  declaration, 
or  by  proof  of  matter  which  showed  that  the  contract  was  void, 
or  that  the  cause  of  action  had  ceased  before  the  commencement 
of  the  suit.  In  the  present  case  the  question  in  effect  is,  whether 
the  writing  required  by  the  4th  section  of  the  Statute  of  Frauds, 
and  which  formerly  was  a  necessary  part  of  the  plaintiff's  proof 
on  the  issue  of  non  assumpsit,  is  so  still;  and  the  Court  are  of 
the  opinion  that  it  is.  Under  the  former  system  of  pleading, 
the  plaintiff  was  required  to  prove  a  writing  within  the  Statute 
of  Frauds.  This  must  have  been  in  order  to  support  some  allega- 
tion of  his  declaration,  and  there  is  no  allegation,  except  that 
of  the  making^°  of  the  contract,  which  it  supports.    This  allega- 

10  Compare  Maule,  J.,  in  Leroux  memorandum    or    note    thereof    in 

V.    Brown,    12    C.  -B.    801     (1852).  writing  signed  by  the  defendant  or 

"The   4th   section   of   the   Statute  any  lawfully  authorized  agent.   The 

of  Frauds  enacts  that  "no  action  case,  therefore,  plainly  falls  within 

shall  be  brought   upon   any   agree-  the  distinct  words   of  the  statute, 

ment  which  is  not  to  be  performed  It  is  said   that   the   4th   section  is 

within  the  space  of  one  year  from  not  applicable  to  this  case,  because 

the     making     thereof,     unless     the  the  contract   was  made  in  France, 

agreement  upon  which  such  action  This  particular  section  does  not  in 

shall   be   brought,    or   some   memo-  terms  say  that  no  such  contract  as 

randum    or   note   thereof,   shall   be  before  stated  shall  be  of  any  force; 

in  writing,  and  signed  by  the  party  it  says,  no  action  shall  be  brought 

to   be   charged  therewith,   or   some  upon    it.      In    their    literal    sense, 

other  person  thereto  by  him  law-  these  words  means  that  no  action 

fully    authorized."      Now,    this    is  shall    be    brought    upon    such    an 

an  action  brought  upon  a  contract  agreement   in   any   court   in   which 

which    was    not    to    be    performed  the    British   legislature    has   power 

within  the  space  of  one  year  from  to    direct     what    shall    and    what 

the  making  thereof,  and  there  is  no  shall  not  be  done;  in  terms,  there- 


534 


The  Answee. 


[Chap.  V. 


tion  is  still  put  in  issue  by  the  plea  of  non  assumpsit;  and  there 
is  nothing  in  the  New  Rules  which  alters  the  evidence  by  which 
the  plaintiff  was  required  to  support  it. 

It  was  contended  on  behalf  of  the  plaintiff,  that  the  want  of 
a  writing  to  satisfy  the  Statute  of  Frauds  was  a  matter  which 
was  required  to  be  specially  pleaded  under  the  3rd  rule,  as  show- 
ing the  contract  to  be  void  or  voidable  in  point  of  law ;  but  we 
thinlc  that  the  meaning  of  this  part  of  the  rule  is  to  require 
matter  to  be  specially  pleaded  which  would  have  been  the  sub- 
ject of  proof  on  the  part  of  the  defendant,  such  as  usury,  fraud, 
&c. ;  and  not  to  exempt  the  plaintiff  from  proving  anything 
which  he  would  formerly  have  been  required  to  prove.  "We 
therefore  think  that  the  writing  required  by  the  4th  section 
must  be  proved  on  the  general  issue  by  the  plaintiff. 

This  Court  has  already  intimated  its  opinion,  that  the  plaintiff 
must  prove  a  note  in  writing,  required  by  the  17th  section,  on 
the  plea  of  the  general  issue;  Johnson  v.  Dodgson  (2  M.  &  W. 
657)  ;  Elliott  V.  Thomas  (3  M.  &  W.  170)  ;  and  we  have  no 
difficulty  in  saying  that  in  the  other  cases  in  which  the  Statute 


fore,  it  applies  to  something  which 
is  to  take  place  where  the  law  of 
England  prevails.  But  we  have 
been  pressed  with  cases  which  it 
is  said  have  decided  that  the  words 
"no  action  shall  be  brought"  in 
the  4th  section  are  equivalent  to 
the  words,  "no  contract  shall  be 
allowed  to  be  good,"  which  are 
found  in  another  part  of  the  stat- 
ute. Suppose  it  had  been  so  held, 
as  a  general  and  universal  proposi- 
tion, still  I  apprehend  it  would  not 
be  a  legitimate  mode  of  construing 
the  4th  section,  to  substitute  the 
equivalent  words  for  those  actually 
used.  What  we  have  to  construe, 
is,  not  the  equivalent  words,  but 
the  words  we  find  there.  If  the 
substituted  words  import  the  same 
thing,  the  substitution  is  unneces- 
sary and  idle;  and,  if  those  words 
are  susceptible  of  a  different  con- 
struction from  those  actually  used, 
that  is  a  reason  for  dealing  with 
the  latter  only.     It  may  be,  that. 


for  some  purposes,  the  words  used 
in  the  4th  and  17th  sections  may 
be  equivalent;  but  they  clearly  are 
not  so  in  the  case  now  before  us; 
for,  there  is  nothing  to  prevent 
this  contract  from  being  enforced 
in  a  French  court  of  law.  Dealing 
with  the  words  of  the  4th  section 
as  we  are  bound  to  deal  with  all 
words  that  are  plain  and  unambig- 
uous, all  we  say,  is,  that  they  pro- 
hibit the  courts  of  this  country 
from  enforcing  a  contract  made 
under  circumstances  like  the  pres- 
ent,— just  as  we  hold  a  contract 
incapable  of  being  enforced,  where 
it  appears  upon  the  record  to  have 
been  made  more  than  six  years. 
It  is  parcel  of  the  procedure,  and 
not  of  the  formality  of  the  con- 
tract. None  of  the  authorities 
which  have  been  referred  to  seem 
to  me  to  be  at  all  at  variance 
with  the  conclusion  at  wliich  we 
have  arrived." 


Sec.  2.]  New  Matter.  535 

of  Frauds  requires  a  writing,  as,  for  instance,  in  eases  of  demises 
for  three  years,  a  writing  must  be  proved,  not  merely  on  a  spe- 
cial traverse  of  the  demise,  but  where  the  denial  of  the  demise 
is  included  in  the  general  issue. 

The  rule,  therefore,  which  has  been  obtained  in  this  case,  to 
enter  a  verdict  for  the  defendant  on  the  first  count,  must  be 
made  absolute. 

Rule  absolute. 


SPRINGER  V.  KLEINSORGB. 

Supreme  Court  of  Missouri,  1884.     83  Mo.  152. 

Philips,  C.  This  is  an  action  to  recover  from  the  defendant 
the  amount  alleged  to  have  been  bid  by  him  for  certain  real 
estate  sold  in  the  name  of  Nicholas  Springer  and  others  at  public 
auction.  The  answer  tendered  the  general  issue,  and  further 
pleaded  that  at  said  sale  false  and  fraudulent  bidders,  known 
as  bybidders,  through  the  connivance  of  plaintiff's  testator,  were 
present,  and  that  false  representations  were  then  and  there  made 
by  vendors,  by  reason  of  which  defendant  was  misled  into  mak- 
ing a  bid  at  said  pretended  sale. 

On  a  trial  before  the  court,  without  a  jury,  the  court  found 
the  issues  for  the  defendant,  and  dismissed  the  petition.  From 
this  judgment  plaintiffs  appealed  to  the  St.  Louis  court  of 
appeals,  where  the  judgment  of  the  circuit  court  was  reversed. 
From  this  last  judgment  the  defendant  prosecutes  this  appeal. 

1.  The  statute  of  frauds  is  invoked  in  argument  by  the  de- 
fendant. The  court  of  appeals  held  that  "the  statute  of  frauds 
is  not  in  the  case  at  all  because  it  is  not  pleaded."  We  cannot 
assent  to  this  proposition.  The  petition  avers  a  contract  of  sale 
respecting  real  estate.  It  is  not  averred  whether  the  contract  is 
in  writing  or  not.  The  presumption,  however,  in  such  case  is, 
that  the  contract  is  such  as  the  law  recognizes.  If  it  appeared 
on  the  face  of  the  petition  that  it  was  not  in  writing,  duly  ex- 
ecuted, the  petition  would  be  demurrable.  This  fact  not  so  ap- 
pearing, the  defendant,  to  avail  himself  of  the  statute  of  frauds, 
must  raise  the  issue  by  answer.  But  it  is  not  necessary  that  the 
answer  should,  in  so  many  words,  plead  the  statute  eo  nomine. 


536  The  Answer.  [Chap.  V. 

"Where  the  defendant  in  his  answer  denies  the  contract,  it  is 
not  necessary  for  him  to  insist  upon  the  statute  as  a  bar." 
Wildbahn  v.  Eobidoux,  11  Mo.  660;  Hook  v.  Turner,  22  Mo. 
383-835.  It  is  as  fully  raised  by  a  general  denial  ''as  any  other 
ansAver  could  raise  it. ' '  Wisnell  v.  Tefft,  5  Kan.  263 ;  Bliss  on 
PI.  353 ;  Allen  v.  Richard,  ante,  p.  55. 

On  such  state  of  the  pleadings  the  plaintiff,  as  said  by  Ryland, 
J.,  in  Hook  v.  Turner,  supra,  "must  produce  legal  evidence  of 
the  existence  of  the  agreement,  which  cannot  be  established  by 
parol  proof."  This  logically  results  from  the  general  denial  au- 
thorized by  the  practice  act.  The  general  denial  puts  in  issue 
every  fact  included  within  the  allegations  of  the  petition,  which 
the  plaintiff  must  prove  in  order  to  a  recovery.  Northrup  v. 
Miss.  V.  Ins.  Co.,  47  Mo.  435-444.  In  the  action  of  replevin  and 
of  ejectment,  under  a  general  denial,  the  defendant  may  show 
that  the  claim  of  plaintiff  is  fraudulent  and  bad,  and  thus  avoid 
the  plaintiff's  title.  Green  way  v.  James,  34  Mo.  328;  Bobb  v. 
Woodward,  42  Mo.  488 ;  25  Wis.  35-36 ;  3  Bibb  216.  The  answer 
in  this  case  contains,  first,  a  general  denial  of  the  allegation  of 
the  petition.  It  is  true,  it  pleads  other  matters  of  special  de- 
fense, but  the  new  matter  is  in  nowise  inconsistent,  in  contem- 
plation of  the  practice  act,  with  a  general  denial.  They  can  well 
exist  together  in  point  of  fact  and  law.  Nelson  v.  Brodhack, 
44  Mo.  596. 

This  construction  of  the  pleading  in  this  ease  is  in  nowise  in 
conflict  with  the  cases  of  Gardner  v.  Armstrong,  31  Mo.  535 ; 
Eabsuhl  v.  Lack,  35  Mo.  316 ;  and  Graff  v.  Foster,  67  Mo.  512, 
cited  by  the  court  of  appeals  in  support  of  its  ruling.  In  the 
first  case  cited  the  court  simply  holds,  that  the  petition  was  not 
demurrable  for  failing  to  recite  that  the  contract  was  in  writing. 
That  was  matter  of  defense  to  be  raised  by  the  answer.  It  does 
not  say  that  the  question  would  not  be  well  raised,  under  our 
present  practice  act,  by  the  general  issue.  So  in  the  case  in  35 
Mo.,  the  answer  admitted  the  indebtedness  without  pleading  the 
statute.  And  in  Graff  v.  Foster,  an  examination  will  show  that 
the  answer  did  not  deny  the  contract,  but  merely  put  in  issue  the 
indebtedness.  To  deny  the  indebtedness  is  no  denial  of  the  ex- 
istence of  the  contract  out  of  which  the  petition  avers  the  in- 
debtedness arose.    Engler  v.  Bate,  19  Mo.  543. 

Judgment  (of  the  Court  of  Appeals)  reversed. 


Sec.  2.]  New  Matter.  537 

MATTHEWS  v.  MATTHEWS. 

Court  of  Appeals  of  New  York,  1897.    154  N.  Y.  288. 

This  action  was  brought  to  recover  damages  for  the  breach  of 
an  alleged  contract,  by  which  the  defendant,  Horace  Matthews, 
agreed  to  transfer  his  property  to  the  plaintiff  and  her  husband, 
in  consideration  of  their  removing  from  Pierrepont,  St.  Law- 
rence county,  to  Keesville,  Clinton  county,  and  going  into  pos- 
session of  the  defendant's  house,  lands  and  personal  property, 
and  there  making  a  home  for  him  for  life.  The  complaint  did 
not  show  whether  the  alleged  contract  was  oral  or  written.  The 
answer  contained  a  general  denial,  but  did  not  set  up  the  Stat- 
ute of  Frauds.  The  trial  court  awarded  the  plaintiff  $947  and 
interest ;  the  Appellate  Division  reduced  the  recovery  to  the  sum 
of  $70,  composed  of  items  for  certain  repairs  made  for,  and 
produce  furnished  to,  the  defendant.  Subsequently  to  the  argu- 
ment in  the  Appellate  Division,  the  defendant  died,  and  the 
action  was  continued  in  the  name  of  the  administratrix. 

Andrews,  C.  J.  Subsequently  to  the  decision  of  the  former 
appeal  in  this  case  (133  N.  Y.  681,  31  N.  E.  519),  the  case  of 
Crane  v.  Powell,  139  N.  Y.  379,  34  N.  E.  911,  came  before  the 
court,  in  which  the  controverted  question  was  whether,  in  an 
action  on  an  oral  contract  within  the  statute  of  frauds,  where 
the  complaint  did  not  disclose  the  nature  of  the  contract,  whether 
oral  or  written,  it  was  necessary  for  the  defendant  to  plead  the 
statute  in  order  to  avail  himself  of  the  objection.  The  question 
was  distinctly  decided  in  that  case,  and  it  was  held  that  the 
statute  was  a  defense,  and,  unless  pleaded,  was  not  available  to 
the  defendant  to  defeat  the  action.  The  ease  must  be  regarded 
as  settling  the  law  of  this  state  upon  a  question  upon  which  the 
courts  of  different  jurisdictions  have  differed  in  opinion.  This 
court  regarded  the  rule  adopted  in  Crane  v.  Powell  as  sound  in 
principle,  and  as  supported  by  the  rule  applied  in  analagous 
cases. 

It  is  plain,  upon  the  view  that  the  statute  of  frauds  does  not 
make  an  oral  contract  within  its  terms  illegal,  but  only  voidable 
at  the  election  of  the  party  sought  to  be  charged,  that  such  elec- 
tion must  be  manifested  in  some  affirmative  way.  The  mere 
denial  in  the  answer  of  the  contract  alleged  in  the  complaint, 
when  the  character  of  the  contract  is  not  disclosed,  is  quite  con- 


15 


538  The  Answer.  [Chap.  T. 

sistent  with  an  intention  to  put  in  issue  simply  tlie  fact  whether 
any  agreement  was  entered  into,  either  oral  or  written.  One  of 
the  rules  established  by  the  English  judicature  act,  as  amended 
in  1873  (38  &  39  Vict.  c.  77,  order  19,  rule  23),  ordained  that, 
"where  a  contract  is  alleged  in  any  pleading,  a  bare  denial  of 
the  contract  by  the  opposite  party  shall  be  construed  only  as  a 
denial  of  the  making  of  the  contract,  and  not  of  its  legality  or 
its  sufficiency  in  law,  whether  with  reference  to  the  statute  of 
frauds  or  otherwise";  and  in  Towle  v.  Topham,  37  Law  T.  (N. 
S.)  309,  Jessel,  M.  R.,  applied  the  rule  to  the  pleadings  in  an 
equity  case.  The  statutory  rule  enacted  by  the  English  judica- 
ture act  was  regarded  by  this  court  in  Crane  v.  Powell  as  de- 
claring the  true  rule,  independently  of  the  statute.  The  mere 
denial  in  the  answer  in  the  present  case  of  the  contract  alleged 
in  the  complaint  did  not,  therefore,  raise  any  question  under  the 
statute  of  frauds,  and  it  could  not  be  raised  by  objection  on  the 
trial  to  the  proof  of  the  oral  contract,  for  the  very  conclusive 
reason  that  the  statute  must  be  pleaded  before  the  validity  of 
the  contract  on  that  ground  can  be  assailed.  Regarding  the 
agreement  alleged  and  found  in  this  case  as  one  for  the  sale  and 
conveyance  to  the  plaintiff  of  the  house  and  lot,  and  applying 
the  rule  established  in  Crane  v.  Powell,  it  is  plain  that  it  must 
be  treated  as  a  valid  contract,  and  its  breach  by  the  original  de- 
fendant (who  has  died  since  the  last  trial)  as  giving  a  right  of 
action  for  damages,  as  if  the  contract  had  been  written  and  not 
oral. 

The  complaint  alleged  a  contract  founded  on  a  good  consid- 
eration, but  did  not  allege  whether  it  was  oral  or  written.  The 
defendant  in  his  answer  denied  the  making  of  the  contract  al- 
leged, but  did  not  plead  the  Statute  of  Frauds  as  a  defense.  On 
the  trial  the  plaintiff  proved  an  oral  contract  to  the  effect  stated 
in  the  complaint.  The  defendant  objected  that  the  oral  contract 
was  void  by  the  Statute  of  Frauds,  but  the  objection  was  over- 
ruled. *  *  *  The  judgment  of  the  Appellate  Division  should 
be  reversed  and  the  judgment  of  the  Special  Term  affirmed.^ 

1  For  a  collection  of  the  cases  on       see  Henry  v.  Hilliard,  49  L.  R.  A 
the    proper    pleading    to    raise    the       (N.  S.)  1,  annotated, 
defence   of  the  statute  of   frauds, 


Sec.  2.]  New  AIatter,  539 

PASTENE  V.  PARDINI. 

Supreme  Court  of  California,  1902.    135  Cal.  431, 

Henshaw,  J.  This  was  an  action  upon  a  promissory  note. 
The  complaint  contained  the  usual  averments.  It  charged  that 
Luigi  Pardini,  "for  a  valuable  consideration,  made,  executed, 
and  delivered  to  plaintiff  a  promissory  note,"  etc.  It  also 
averred  nonpayment  of  the  principal  sum  and  interest,  and  that 
the  whole  was  due  and  unpaid.  The  answer  was  a  denial  that 
"Luigi  Pardini,  for  a  valuable  consideration  or  otherwise,  made, 
executed,  and  delivered  to  plaintiff,  a  promissory  note  for  the 
sum  of  twenty-five  hundred  dollars  or  any  other  sum."  The 
next  denial  of  the  answer  was:  "Denies  that  Luigi  Pardini  has 
not  paid  the  alleged  note  set  forth  in  plaintiff's  complaint;  denies 
that  the  said  Luigi  Pardini  has  not  paid  the  interest  on  said 
alleged  note  set  forth  in  plaintiff's  complaint;  denies  that  said  al- 
leged note  or  the  interest  is  still  unpaid."  Following  these 
denials  was  a  cross  complaint  to  the  effect  that  the  sum  of  $800 
was  loaned  to  plaintiff  by  Luigi  Pardini. 

At  the  opening  of  the  trial,  plaintiff's  attorneys  stated  what 
he  believed  to  be  the  issues  involved,  and  that  the  sole  issue  was 
the  execution  of  the  note,  stating,  further,  his  conviction  that 
the  cross  complaint  was  not  proper  in  the  action.  The  court,  in 
passing  upon  the  suggestion  of  the  attorney,  held  that  the  cross 
complaint  could  not  be  set  up  in  the  action,  and  settled  the 
pleadings  by  declaring :  ' '  The  only  issue  under  th«  pleadings  is 
whether  the  deceased,  Pardini,  executed  the  note."  Appellants 
contend  that  by  the  ruling  of  the  court  above  quoted  he  was 
deprived  of  his  defenses  to  the  note  of  nondelivery,  want  of 
consideration,  and  payment.    *    *    * 

As  to  the  second  and  third  contentions,  that  the  defendant 
was  deprived  of  his  defenses  of  lack  of  consideration  and  pay- 
ment, it  is  sufficient  to  say  that  such  defenses  are  affirmative 
defenses  to  be  pleaded,  and  this,  defendant  did  not  do.  He  con- 
tented himself  in  his  answer  with  a  naked  denial  of  the  aver- 
ments of  the  complaint,  and  this,  as  has  been  repeatedly  held 
in  this  and  in  other  code  states,  is  not  sufficient  to  raise  either 


540  The  Answer.  [Chap.  V. 

of  these  issues.  *'A  promissory  note  imports^  a  consideration, 
and  therefore  it  is  not  necessary  that  a  consideration  should  be 
specially  alleged.  If  there  was  no  consideration,  the  defendant 
should  have  filed  an  answer  setting  up  a  want  of  it  as  a  defense 
to  the  action."  Winters  v.  Rush,  34  Cal.  136.  The  introduction 
of  the  unpaid  note  by  the  plaintiff  was  sufficient  evidence,  if 
evidence  was  necessary,  in  support  of  his  negative  allegation  of 
nonpayment  (Brennan  v.  Brennan,  122  Cal.  441,  [55  Pac.  124, 
68  Am.  St.  Rep.  46] )  ;  but  payment  is  an  affirmative  defense, 
which  must  be  pleaded.  (Melone  v.  Ruffino,  129  Ca.  514,  [62 
Pac.  93,  79  Am.  St.  Rep.  127.])  Therefore,  defendant  has  no 
just  cause  for  complaint  that  he  was  excluded  by  the  ruling  of 
the  court  from  offering  evidence  upon  defenses  which  he  had 
not  raised. 

There  was  sufficient  evidence  to  support  the  findings  of  the 
court  upon  all  the  issues,  and,  as  defendant  was  not  deprived  of 
any  defense  to  which  he  was  entitled,  the  judgment  is  affirmed. 


BARKER  v.  WHEELER. 

Supreme  Court  of  Nebraska,  1901.    62  Neh.  110. 

Sullivan,  J.  Bert  Glendore  Wheeler  sued  the  plaintiffs  in 
error  as  sureties  upon  an  official  bond,  and  obtained  judgment 
against  them.  The  petition  alleges  that  one  James  W.  Eller  was 
county  judge  of  Douglas  county  during  the  term  ending  Janu- 
ary 3,  1894 ;  that  the  defendants  George  E.  Barker  and  William 
S.  Rector  were  the  sureties  upon  his  official  bond ;  that  Eller  in 
his  official  capacity  received  certain  money  belonging  to  the 
plaintiff,  and  converted  the  same  to  his  own  use.  The  answer 
admits  that  Eller  was  county  judge,  and  that  defendants  were 
his  sureties,  but  denies  in  general  terms  the  other  averments  of 
the  petition.     The  only  assignment  of  error  with  which  we  have 

2  At   common   law   a  promissory  him.     Delano  v.  Bartlett,   6   Cush. 

note    appears  to  have  been  regarded  364,    (1850),    burden    of    proof    on 

in  the   same  light  as  other  simple  plaintiff;  Ballon  v.  Wells,  12  Allen 

contracts,  so  that  consideration  was  455,    (1866),  plea  of  want   of  con- 

an  essential  part  of  the  plaintiff's  sideration  not  new  matter, 
case  to  be  pleaded  and  proved  by 


Sec.  2.]  New  Maitee.  541 

to  deal  calls  in  question  a  ruling  of  the  trial  court  excluding 
evidence  tending  to  show  that  Eller,  while  he  was  yet  judge  of 
the  county  court,  paid  the  plaintiff's  money  to  her  duly  consti- 
tuted guardian.  The  correctness  of  this  ruling  depends  upon 
whether,  in  actions  of  this  kind,  evidence  of  payment  is  admis- 
sible under  a  general  denial.  It  is  settled  doctrine  in  this  state, 
that,  in  actions  to  recover  money  claimed  to  be  due  upon  ordi- 
nary contracts,  the  general  denial  is  the  Code  equivalent  of  the 
common  law  plea  of  non-assumpsit,  and  hence  does  not  put  the 
allegation  of  nonpayment  in  issue.  Magenau  v.  Bell,  14  Neb.  7, 
(14  N.  W.  664)  ;  Clark  v.  Mullen,  16  Neb.  481,  (20  N.  W.  642)  ;' 
Lamb  v.  Thompson,  31  Neb.  448,  (48  N.  W.  58)  ;  Le^ds  v.  Lewis, 
31  Neb.  528,  (48  N.  W.  267)  ;  Live-stock  Co.  v.  May,  51  Neb. 
474,  (71  N.  W.  67)  ;  Hudelson  v.  Bank,  51  Neb.  557,  (71  N.  W. 
304).  These  cases  recognize  no  distinction  between  payment  ac- 
cording to  the  terms  of  the  contract  and  payment  after  breach 
of  the  contract,  and  one  of  them,  at  least  (Clark  v.  MuUen,  16 
Neb.  481,  20  N.  W.  642),  is  a  direct  adjudication  to  the  effect 
that  payment  at  the  time  the  goods  were  sold  and  delivered,  and 
before  a  cause  of  action  arose,  could  not  be  shown  unless  spe- 
cially pleaded.  But  neither  this  court  nor  any  other,  so  far  as 
we  know,  has  ever  held,  in  an  action  on  an  official  bond  or  other 
bond  of  indemnity,  that  the  plaintiff  was,  by  a  general  denial, 
relieved  of  the  necessity  of  proving  the  loss  or  injury  out  of 
which  arose  the  right  of  action.  The  defendants  did  not  by 
their  bond  become  indebted  to  the  plaintiff.  They  assumed  no 
specific  obligation  to  her  which  they  were  bound  at  all  events  to 
discharge,  by  payment  or  otherwise.  Their  promise,  given  to 
the  county  of  Douglas,  was  to  make  good  any  loss  that  the  pub- 
lic or  individuals  might  sustain  by  reason  of  the  official  miscon- 
duct of  Eller.  This  being  so,  it  would  be  illogical — it  would  be 
inconsistent  with  reason  and  common  sense — to  hold  that  a  gen- 
eral denial,  like  the  plea  of  non-assumpsit,  put  in  issue  nothing 
but  the  execution  of  the  bond.  An  offer  to  prove  pajonent  is  not 
in  every  case  an  implied  admission  that  the  plaintiff  once  had 
an  actionable  demand  against  the  defendant;  its  purpose  may 
be,  as  in  this  case,  to  prove  that  a  right  of  action  never  existed. 
Eller  received  the  money  in  question  rightfully.  His  possession 
of  it  as  county  judge  was  lawful,  and  there  is  no  presumption 
that  he  was  guilty  of  official  misconduct.  The  allegation  of  con- 
version Avas,  therefore,  a  material  one,  and  it  was  not  admitted 


,542  The  Answer.  [Chap.  V. 

by  the  general  denial.  Payment  was  not  new  matter,  within 
the  meaning  of  section  99  of  the  Code  of  Civil  Procedure,  for  it 
was  offered,  not  to  show  the  discharge  of  an  obligation  that  once 
existed,  but  to  show  that  the  bond  had  not  been  forfeited,  as 
alleged,  that  Eller  had  not  been  guilty  of  official  misconduct, 
that  the  plaintiff  had  not  been  injured ;  in  short,  that  one  of  the 
essential  averments  of  the  petition  was  not  true.  In  State  v. 
Peterson  (Mo.  Sup.),  39  S.  W.  453,  which  was  an  action  upon  an 
official  bond,  the  court,  speaking  by  Macfarlane,  J.,  said  that 
"in  cases  in  which  nonpayment  is  a  material  fact  necessary  to 
constitute  a  cause  of  action,  it  must  be  alleged  and  proved  as 
part  of  plaintiff's  case,  and  defendant  can  controvert  it,  under 
a  general  denial,  by  proof  that  payment  was  made."  Other 
cases  to  the  same  effect  are  Manufacturing  Co.  v.  Tinsley,  75  Mo. 
458,  and  Knapp  v.  Roche,  94  N.  Y.  329.  The  case  of  Hudelson 
V.  Bank,  supra,  does  not  at  all  support  the  position  for  which 
the  plaintiff  contends.  It  merely  decides  that,  in  an  action  by  a 
mortgagee  for  possession  of  mortgaged  chattels,  an  allegation  of 
nonpayment  of  the  mortgage  debt  is  indispensable.  The  legal 
effect  of  a  general  denial  was  not  determined,  nor  was  there  any 
occasion  to  consider  the  question,  as  the  statute  declares  the 
effect  of  such  a  denial  in  actions  of  replevin. 

The  judgment  heretofore  rendered  in  this  court  is  set  aside, 
the  judgment  of  the  district  court  is  reversed,  and  the  cause 
remanded  for  further  proceedings. 

Reversed  and  remanded. 


FINLEY  V.  QUIRK. 

Supreme  Court  of  Minnesota,  1864.    9  Minn.  194. 

Wilson,  J.  Action  for  breach  of  warranty  of  a  horse.  The 
suit  was  originally  commenced  in  justice's  court,  and  after  judg- 
ment removed  by  appeal  into  the  district  court  of  Rice  County. 
In  the  complaint  the  plaintiff  "charged  that  the  defendant  in 
sale  of  a  horse  to  him  warranted  the  horse  to  be  sound,  perfect 
in  every  respect,  and  true,  gentle,  and  willing  to  work — all 
which  representations  he  knew  to  be  false."  Defendant  in  his 
answer  "denied  the  warranty  and  all  knowledge  of  any  defects, 


Sec.  2.]  New  Matter.  543 

and  alleged  that  at  the  time  of  sale  the  horse  was  sound,  gentle, 
and  willing  to  work."  Verdict  was  rendered  in  the  district 
court  for  the  plaintiff,  and  the  defendant  thereupon  moved  the 
court  for  a  new  trial.  The  motion  was  denied,  and  the  defend- 
ant appealed  to  this  court. 

The  grounds  for  a  new  trial  urged  in  this  court  are:  First, 
error  in  law  occurring  at  the  trial  and  excepted  to;  second,  that 
the  evidence  was  not  sufficient  to  justify  the  verdict.  These  ob- 
jections we  ^\dll  examine  in  the  inverse  order  of  their  statement. 
*  *  *  Third,  in  the  examination  of  the  plaintiff's  witnesses, 
it  appeared  that  on  Saturday  the  parties  met,  and  the  plaintiff 
agreed  to  purchase  and  the  defendant  to  sell  the  horse  at  a  price 
agreed  upon.  The  plaintiff  then  paid  $5  to  "bind  the  bargain," 
agreeing  to  pay  the  balance  of  the  purchase  money  on  the  next 
day,  when  the  horse  was  to  be  delivered.  The  horse  was  de- 
livered, and  the  purchase  money  paid,  on  the  next  day  (the 
Sabbath),  in  pursuance  of  the  contract. 

When  the  plaintiff  closed  his  evidence  and  rested  his  case  the 
defendant  moved  the  court  for  judgment  on  the  ground  that 
the  evidence  showed  that  the  bargain  was  consummated  on  Sun- 
day. The  motion  was  denied,  and  defendant  excepted.  This  is 
the  principal  point  in  the  case;  we  think  the  only  one  relied 
upon  by  defendant's  counsel.  The  sale  of  a  horse  consummated 
on  the  Sabbath  is  void,  and  an  action  on  the  warranty  in  such 
sale  will  not  lie.  Comp.  Stat.  730,  §  19;  Smith  v.  Wilcox,  24 
N.  Y.  353 ;  Northrup  v.  Foot,  14  Wend.  248 ;  Brimhall  v.  Van 
Campen,  8  Minn.  (13);  Finney  v.  Callendar,  id.  (41).  It  is 
claimed  by  the  counsel  for  the  plaintiff  that  this  point  was  not 
in  issue,  and  therefore  that  the  evidence  touching  it  was  irrel- 
evant. It  is  doubtless  true  that  evidence  must  correspond  with 
the  allegations,  and  he  confined  to  the  point  in  issue,  and  if  in 
the  examination  of  witnesses  facts  come  out  which,  had  they 
been  alleged,  would  furnish  ground  of  relief  or  defense,  such 
facts  must  be  disregarded  unless  they  are  warranted  by  the 
allegations  of  the  pleadings.  Stuart  v.  Merchants'  and  Farmers' 
Bank,  19  Johns.  505 ;  Field  v.  Mayor  of  N.  Y.,  6  N.  Y.  179. 

The  defendant  insists  that  the  answer  doth  not  admit  a  valid 
contract.  We  will  for  the  present  take  this  for  granted,  and 
examine  the  case  in  that  point  of  view.  The  case  therefore  turns 
on  the  question  whether  it  was  necessary  to  specifically  aver  in 
the  answer  the  facts  establishing  this  defense. 


544  The  Answer.  [Chap.  V. 

We  think  this  must  be  answered  in  the  affirmative,  whether  it 
is  viewed  as  a  question  of  principle  or  by  the  light  of  authority. 
Our  statute  provides,  that  "the  complaint  must  contain  a  state- 
ment of  the  facts  constituting  the  cause  of  action  in  ordinary 
and  concise  language,  etc.;  that  the  answer  must  contain  (1)  a 
denial  of  each  allegation  of  the  complaint  controveHed,  and  (2) 
a  statement  of  any  new  matter  constituting  a  defense,"  etc.; 
that  "an  issue  of  fact  arises  upon  a  material  allegation  of  the 
complaint  controverted  by  the  answer,"  etc. 

It  will  be  oliserved  that  the  plaintiff  can  only  allege  facts,  and 
that  in  the  answer  the  defendant  must  either  deny  the  facts 
alleged  in  the  complaint,  or  allege  new  matter  by  way  of  defense 
or  avoidance.  And  when  the  answer  consists  merely  of  a  denial, 
it  is  quite  clear  that  the  plaintiff  will  only  be  required  to  prove, 
and  the  defendant  only  permitted  to  controvert,  the  facts  al- 
leged in  the  complaint.  Allen  v.  Patterson,  7  N.  Y.  478 ;  Mulry 
V.  Mohawk  Valley  Ins.  Co.,  5  Gray  544.  In  the  language  of  Mr. 
Justice  Selden,  in  case  of  Benedict  v.  Seymour,  6  How.  Pr.  R. 
298,  "A  general  traverse  under  the  code  authorized  the  intro- 
duction of  no  evidence  on  the  part  of  the  defendant,  except  such 
as  tends  directly  to  disprove  some  fact  alleged  in  the  complaint." 
If  the  question  of  the  legality  of  the  sale  can  be  raised  by  a 
denial  of  any  allegation  of  the  complaint,  it  must  be  by  a  denial 
of  the  sale,  for  the  day  or  time  of  the  sale  is  not  a  material  or 
traversable  fact.  1  Chitty  PL  613-14,  621;  1  Barb.  Ch.  Pr.  136; 
2  Saund.  219 ;  Steph.  PI.  244-45 ;  Newman  v.  Otto,  4  Sandf.  688. 

We  have  above  seen  that  an  issue  of  fact  arises  only  upon  a 
material  allegation  of  the  complaint  controverted  by  the  answer, 
and  in  this  case  the  legality  of  the  sale  is  not  alleged,  and  of 
course  is  not  and  could  not  be  denied  or  controverted.  Nor  is 
such  an  allegation  necessary,  for  it  is  a  well  established  rule  of 
pleading  that  it  is  not  necessary  to  allege  what  the  law  will  pre- 
sume, and  everything  is  presumed  to  have  been  legally  done 
until  the  contrary  is  proved.  1  Chitty  PI.  221 ;  Maynard  v.  Tol- 
cott,  11  Barb.  569 ;  Steph.  PI.  353-54 ;  1  Van  Sant.  PI.  330.  But 
even  if  it  was  admitted  that  the  defendant  might  by  a  mere 
denial  raise  an  issue  on  a  fact  not  specifically  alleged,  yet  the 
legality  of  the  sale  is  not  a  traversable  fact  but  a  conclusion  or 
inference  of  law.  1  Chitty  PI.  213-14,  540 ;  Ensign  v.  Sherman, 
13  How.  Pr.  R.  35;  Mann  v.  More  wood,  5  Sandf.  564;  Lienan 
v.  Lincoln,  2  Duer  670;  Lawrence  v.  Wright,  id.  673;  Moss  v. 


Sec.  2.]  New  Matter.  545 

Riddle,  5  Cranch  351 ;  Major  v.  The  State,  8  Blackf.  72.  And  a 
traverse  or  denial  can  only  be  of  matter  of  fact  and  not  of  con- 
clusion of  law.  1  Chitty  PI.  612;  Steph.  PI.  191;  1  Barb.  Ch. 
Pr.  133;  Comp.  Stat.  541;  Moss  v.  Riddle,  and  Major  v.  The 
State,  above. 

The  true  object  of  pleading  is  and  always  has  been  to  apprise 
the  adverse  party  of  the  ground  of  action  or  defense,  in  order 
that  he  may  be  prepared  to  contest  it,  and  may  not  be  taken  by 
surprise.  1  Chitty  PI.  478,  213;  Mann  v.  Morewood,  5  Sandf. 
564;  Story  Eq.  §§  255-57,  852;  1  Barb.  Ch.  Pr.  137.  The  rules 
of  pleading  will  generally  be  found  to  be  ancillary  to  or  the 
logical  sequence  of  this  cardinal  principle  or  rule.  Facts  are 
only  to  be  stated  in  pleadings,  and  not  arguments,  inference,  or 
matters  of  law.  1  Chitty  PI.  214 ;  Story  Eq.  PI.  852 ;  Lienan  v. 
Lincoln,  2  Duer,  670 ;  Lawrence  v.  Wright,  id.  673 ;  because  the 
statement  of  facts  is  necessary  to  apprise  the  adverse  party  of 
the  ground  of  action  or  defense.  Mr.  Justice  Buller  well  says 
that  it  is  "one  of  the  first  principles  of  pleading  that  there  is 
only  occasion  to  state  facts,  which  must  be  done  for  the  purpose 
of  informing  the  court  whose  duty  it  is  to  declare  the  law  arising 
vipon  those  facts,  and  of  apprising  the  opposite  party  of  what  is 
meant  to  be  proved  in  order  to  give  him  an  opportunity  to  an- 
swer or  traverse  it. ' '  Doug.  159 ;  1  Chitty  PI.  213.  With  the 
same  object  in  view  our  legislature  provides  that  every  ground 
of  action  or  defense  should  be  stated  "in  ordinary  and  concise 
language,  and  in  such  a  manner  as  to  enable  a  person  of  common 
understanding  to  know  what  is  intended." 

The  answer  in  this  case  gives  no  intimation  of  the  nature  of 
the  defense  relied  upon,  or  that  any  defense  is  to  be  interposed 
except  by  disproof  of  the  facts  alleged  in  the  complaint.  Such  a 
defense  is  not  admissible  under  an  answer  merely  by  way  of 
denial.  It  is  not  in  principal  distinguishable  from  any  other 
which  admits  a  contract  in  point  of  fact,  that  is  alleged  to  be 
void  in  point  of  law ;  as,  for  instance,  usury,  gaming,  stock  job- 
bing, coverture,  fraud,  etc.  The  facts  tending  to  establish  any 
such  defense  are,  in  their  nature,  "new  matter  constituting  a 
defense, ' '  or,  to  use  an  expression  more  common  in  the  law,  and 
having  the  same  meaning,  "matter  in  confession  and  avoid- 
ance." Catlin  V.  Gunter,  11  N.  Y.  368;  Tidd.  Pr.  643,  685;  Fay 
V.  Grimsteed,  10  Barb.  321 ;  Gould  v.  Horner,  12  Barb.  602; 
Watson  V.  Bailey,  2  Duer  509.     The  principles  of  pleading  in 


546  The  Answer.  [Chap.  V. 

courts  of  law  and  equity,  and  the  express  provisions  of  our  stat- 
ute require  that  such  matter  should  be  specifically  averred  in  the 
answer.  See  cases  last  above  cited.  Gouverneur  v.  Elmendorf, 
5  Johns.  Ch.  79;  Stuart  v.  Merchants'  &  Farmers'  Bank,  19 
Johns.  496 ;  Richards  v.  Worthley,  5  Wis.  73 ;  Steph.  PI.  213 ; 
Mulry  V.  Mohawk  Valley  Ins.  Co.,  5  Gray  541;  Bradford  v. 
Tinkham,  6  Gray  494;  1  Chitty  PI.  526;  id.  213.  Thus  onlij  can 
the  answer  apprise  the  plaintiff  of  the  ground  of  defense,  which 
we  have  seen  is  the  true  object  of  pleading.  This  general  rule, 
and  the  necessity  for  its  observance,  are  well  illustrated  and  im- 
pressed by  the  case  before  us.  It  is  true  that  at  common  law,  in 
assumpsit  on  the  general  issue,  matters  of  defense  of  this  char- 
acter may  be  given  in  evidence. 

But  these  rulings  are  not  applicable  as  precedents  in  this  case ; 
because — first,  the  general  issue  cannot  be  pleaded  under  our 
statute ;  second,  the  rules  of  pleading  under  the  general  issue  at 
common  law  have  always  been  admitted  to  be  at  variance  with 
the  principles  and  logic  of  that  system  of  pleading  (Steph.  PI. 
158;  1  Chitty  PI.  526,  473,  478-9,  213)  ;  and  third,  by  the  rules 
of  Hil.  T.  4  W.  4,  in  England  "this  abuse  has  been  corrected," 
and  matters  of  defense  of  this  character  must  now  be  specially 
pleaded  (see  said  rules)  ;  fourth,  at  common  law  (irrespective  of 
the  rules  of  H.  T.),  where  there  is  a  contract  in  point  of  fact, 
as  in  this  case,  the  defendant  has  the  option  either  to  plead  the 
general  issue,  or  to  plead  specially  any  matter  showing^it  void 
or  voidable  in  point  of  law  (Tidd  Pr.  643;  1  Chitty  PI.  526;  id. 
213-4),  which  is  a  recognition  of  the  principle,  by  us  held  in 
this  case,  that  such  special  matter  is  not  by  way  of  denial,  but 
by  way  of  avoidance  of  the  matters  alleged  in  the  complaint. 
For  that  which  is  only  a  traverse  or  denial  of  the  allegations  of 
the  complaint  can  never  be  specially  pleaded  at  common  law. 
Steph.  PL  202-3;  Bank  of  Auburn  v.  Weed,  19  Johns.  300;  1 
Chit.  PI.  527 ;  Tidd  Pr.  653-4. 

We  hold,  therefore — first,  that  an  answer,  merely  by  way  of 
denial,  raises  an  issue  only  on  the  facts  alleged  in  the  complaint; 
second,  that  the  denial  of  the  sale  of  the  horse  in  this  case  only 
raised  an  issue  on  the  sale  in  point  of  fact,  and  not  on  the  ques- 
tion of  the  legality  of  such  sale ;  third,  that  all  matters  in  con- 
fession and  avoidance,  showing  the  contract  sued  upon  to  be 
either  void  or  voidable  in  point  of  law,  must  be  affirmatively 
pleaded. 


Sec.  2.]  New  Matter.  547 

We  have  thus  far  treated  the  case  as  if  the  answer  denied  each 
allegation  of  the  complaint.  This,  we  think,  cannot  be  admitted. 
The  only  facts  controverted  are— first,  the  warranty;  second,  the 
breach  of  warranty.  These  facts,  only,  the  plaintiff  was  re- 
quired to  prove.  A  sale  of  the  horse  was  admitted,  and  whether 
that  sale  was  void  or  valid  was  not  a  question  in  the  case. 

The  decision  of  the  court  below  was,  therefore,  correct  in  any 

point  of  view. 

Judgment  affirmed. 


OSCANYAN  V.  THE  ARMS  CO. 
Supreme  Court  of  United  States,  1880.    103  U.  S.  261. 

Mb.  Justice  Field  delivered  the  opinion  of  the  court. 

This  is  an  action  to  recover  the  sum  of  $136,000,  alleged  to  be 
due  to  the  plaintiff  upon  a  contract  with  the  defendant,  as  com- 
missions on  the  sales  of  fire-arms  to  the  Turkish  government, 
effected  through  his  influence.  The  defendant  pleads  the  gen- 
eral issue.  At  the  time  the  transactions  occurred,  out  of  which 
this  action  has  arisen,  the  plaintiff  was  consul-general  of  the 
Ottoman  government  at  the  port  of  New  York.  The  defendant 
is  a  corporation,  created  under  the  laws  of  Connecticut.  The 
action  was  originally  commenced  in  the  Supreme  Court  of  New 
York,  and  on  motion  of  the  defendant,  was  removed  to  the  Cir- 
cuit Court  of  the  United  States.  When  it  was  called  for  trial, 
and  the  jury  was  impanelled,  one  of  the  plaintiff's  counsel,  as 
preliminary  to  the  introduction  of  testimony,  stated  to  the  court 
and  jury  the  issues  in  the  case,  and  the  facts  which  they  pro- 
posed to  prove.  From  such  statement  it  appeared  that  the  sales 
for  which  commissions  were  claimed  by  the  plaintiff  were  made 
whilst  he  was  an  officer  of  the  Turkish  government,  and  through 
the  influence  which  he  exerted  upon  its  agent  sent  to  this  coun- 
try to  examine  and  report  in  regard  to  the  purchase  of  arms. 
The  particulars  of  the  services  rendered  will  be  more  fully  men- 
tioned hereafter.  It  is  sufficient  now  to  say  that  the  defendant, 
considering  that  the  facts  which  the  plaintiff  proposed  to  prove 
showed  that  the  contract  was  void  as  being  corrupt  in  itself  and 
prohibited  by  morality  and  public  policy,  upon  which  no  re- 


548  The  Answer.  [Chap.  V. 

covery  could  be  had,  moved  the  court  to  direct  the  jury  to  ren- 
der a  verdict  in  its  favor.  The  court  thereupon  inquired  of  the 
plaintiff's  counsel  if  they  claimed  or  admitted  that  the  state- 
ments which  had  been  made  were  true,  to  which  they  replied  in 
the  affiiTQative.  Argument  was  then  had  upon  the  motion,  after 
which  the  court  directed  the  jury  to  find  a  verdict  for  the  de- 
fendant, which  was  accordingly  done.  Judgment  being  entered 
upon  it,  the  case  was  brought  to  this  court  for  review.  The  re- 
versal of  the  judgment  is  sought  for  alleged  errors  of  the  court 
below  in  three  particulars : 

1st,  In  directing  a  verdict  for  the  defendant  upon  the  open- 
ing statement  of  the  plaintiff's  counsel; 

2d,  In  holding  that  the  question  of  the  illegality  of  the  con- 
tract could  be  considered  in  the  case,  the  same  not  having  been 
specially  pleaded ;  and, 

3d,  In  adjudging  that  the  contract  set  forth  in  the  opening 
statement  was  illegal  and  void. 

Each  of  these  grounds  will  be  carefully  examined. 

1,  Several  reasons  are  presented  against  the  power  of  the 
court  to  direct  a  verdict  upon  the  statement  of  the  facts  which 
the  plaintiff  proposed  to  prove,  that  might  be  more  properly 
urged  against  its  exercise  in  particular  cases.  The  power  of  the 
court  to  act  in  the  disposition  of  a  trial  upon  facts  conceded  by 
counsel  is  as  plain  as  its  power  to  act  upon  the  evidence  pro- 
duced. The  question  in  either  case  must  be  whether  the  facts 
upon  which  it  is  called  to  instruct  the  jury  be  clearly  established. 
If  a  doubt  exists  as  to  the  statement  of  counsel,  the  court  will 
withhold  its  directions,  as  where  the  evidence  is  conflicting,  and 
leave  the  matter  to  the  determination  of  the  jury.    *    *    * 

2.  The  position  of  the  plaintiff  that  the  illegality  of  the  con- 
tract in  suit  cannot  be  noticed,  because  not  affirmatively  pleaded, 
does  not  strike  us  as  having  much  weight.  We  should  hardly 
deem  it  worthy  of  serious  consideration  had  it  not  been  earnestly 
pressed  upon  our  attention  by  learned  counsel.  The  theory  upon 
which  the  action  proceeds  is  that  the  plaintiff  has  a  contract, 
valid  in  law,  for  certain  services.  Whatever  shows  the  invalid- 
ity of  the  contract,  shows  that  in  fact  no  such  contract  as  al- 
leged ever  existed.  The  general  denial  under  the  Code  of  Pro- 
cedure of  New  York,  or  the  general  issue  at  common  law,  is 
therefore  sustained  by  proof  of  the  invalidity  of  the  transaction 
which  is  designated  in  the  complaint  or  declaration  as  a  contract. 


Sec.  2.]  New  Matter,  549 

Whilst,  however,  at  the  common  law,  under  the  general  issue 
in  assumpsit,  it  was  always  admissi])le  to  give  in  evidence  any 
matter  which  showed  that  the  plaintiff  never  had  a  valid  cause 
of  action,  in  practice  many  other  matters  were  allowed  under 
that  plea,  such  as  went  to  the  discharge  of  the  original  cause  of 
action,  and  showed  that  none  subsisted  at  the  commencement 
of  the  suit, — such  as  payment,  release,  accord  and  satisfaction, 
and  a  former  recovery,  and  excuses  for  non-performance  of  the 
contract;  and  also  that  it  had  become  impossible  or  illegal  to 
perform  it.  1  Chitty  Pleading,  493;  Craig  v.  The  State  of 
Missouri,  4  Pet.  410-426;  Edson  v.  Weston,  7  Cow.  (N.  Y.)  278; 
Young  V.  Rummell,  2  Hill  (N.  Y.),  478.  It  followed  that  there 
were  many  surprises  at  the  trial  by  defenses  which  the  plaintiff 
was  not  prepared  to  meet.  The  English  courts,  under  the  au- 
thority of  an  act  of  Parliament  passed  in  the  reign  of  William 
IV.,  adopted  rules  which,  to  some  extent,  corrected  the  evils  aris- 
ing from  this  practice  of  allowing  defenses  under  the  general 
issue  which  did  not  go  directly  to  the  validity  of  the  original 
cause  of  action.  And  the  Code  of  Procedure  of  New  York  did 
away  entirely  with  the  practice  in  that  State,  and  required  par- 
ties relying  upon  an3d;hing  which,  admitting  the  original  exist- 
ence of  the  cause  of  action,  went  to  show  its  discharge,  such  as  a 
release  or  payment,  or  other  matter, — to  plead  it  specially,  in 
order  that  the  plaintiff  might  be  apprised  of  the  grounds  of  de- 
fense to  the  action.  We  do  not  understand  that  the  code  makes 
any  other  change  in  the  matters  admissible  under  the  general 
denial. 

But  if  we  are  mistaken  in  this  view  of  the  system  of  procedure 
adopted  in  New  York,  and  of  the  defenses  admissible  according 
to  it  under  a  general  denial  in  an  action  upon  a  contract,  our 
conclusion  would  not  be  changed  in  the  present  case.  Here  the 
action  is  upon  a  contract  which,  according  to  the  view  of  the 
judge  who  tried  the  case,  was  a  corrupt  one,  forbidden  by  mo- 
rality and  public  policy.  We  shall  hereafter  examine  into  the 
correctness  of  this  view.  Assuming  for  the  present  that  it  was  a 
sound  one,  the  objection  to  a  recovery  could  not  be  obviated  or 
waived  by  any  system  of  pleading,  or  even  by  the  express  stipu- 
lation of  the  parties.  It  was  one  which  the  court  itself  was 
bound  to  raise  in  the  interest  of  the  due  administration  of  jus- 
tice. The  court  will  not  listen  to  claims  founded  upon  services 
rendered  in  violation  of  common  decency,  public  morality,  or  the 


550  The  Answer.  [Chap.  Y. 

law.  History  furnishes  instances  of  robbery,  arson,  and  other 
crimes  committed  for  hire.  If,  after  receiving  a  pardon,  or  suf- 
fering the  punishment  imposed  upon  him,  the  culprit  should 
sue  the  instigator  of  the  crime  for  the  promised  reward, — if  we 
may  suppose  that  audacity  could  go  so  far, — the  court  would  not 
hesitate  a  moment  in  dismissing  his  case  and  sending  him  from 
its  presence,  whatever  might  be  the  character  of  the  defense.  It 
would  not  be  restrained  by  defects  of  pleading,  nor,  indeed, 
could  it  be  by  the  defendant's  waiver,  if  we  may  suppose  that  in 
such  a  matter  it  would  be  offered.  "What  is  so  obvious  in  a  case 
of  such  aggravated  criminality  as  the  one  supposed,  is  equally 
true  in  all  cases  where  the  services  for  which  compensation  is 
claimed  are  forbidden  by  law,  or  condemned  by  public  decency 
or  morality. 

This  doctrine  was  applied  in  Coppell  v.  Hall,  reported  in  7th 
Wallace.  In  that  case  Coppell  was  the  acting  British  consul  in 
New  Orleans,  and  during  the  late  civil  war  entered  into  a  con- 
tract with  one  Hall,  by  which  the  latter  agreed  to  furnish  him 
with  sundry  bales  of  cotton,  which  he  was  to  cause  to  be  pro- 
tected from  seizure  by  our  forces  and  transported  to  New  Or- 
leans, and  there  disposed  of  to  the  best  advantage,  he  to  receive 
one-third  of  the  profits  for  his  compensation.  For  breach  of 
this  contract  he  sued  Hall,  who  set  up  that  the  contract  was 
against  public  policy  and  void,  and  also  a  reconventional  de- 
mand or  counter-claim  for  damages  for  a  breach  of  the  contract 
by  Coppell.  On  the  trial,  the  court  below,  among  other  things, 
instructed  the  jury  that  if  the  contract  was  illegal,  the  illegality 
had  been  waived  by  the  reconventional  demand  of  the  defend- 
ant; but  this  court  said,  speaking  through  Mr.  Justice  Swayne, 
that  the  instruction  "was  founded  upon  a  misconception  of  the 
law."  "In  such  cases,"  he  added,  "there  can  be  no  waiver. 
The  defense  is  allowed,  not  for  the  sake  of  the  defendant,  but 
of  the  law  itself.  The  principle  is  indispensable  to  the  purity 
of  its  administration.  It  will  not  enforce  what  it  has  forbidden 
and  denounced.  The  maxim,  ex  dolo  non  oritur  actio,  is  limited 
by  no  such  qualification."  The  proposition  to  the  contrary 
strikes  us  as  hardly  worthy  of  serious  refutation.  Whenever  the 
illegality  appears,  whether  the  evidence  comes  from  one  side  or 
the  other,  the  disclosure  is  fatal  to  the  case.  No  consent  of  the 
defendant  can  neutralize  its  effect.  A  stipulation  in  the  most 
solemn  form  to  waive  the  objection  would  be  tainted  with  the 


Sec.  2.]  New  Matter.  551 

vice  of  the  original  contract,  and  void  for  the  same  reasons. 
Wherever  the  contamination  reaches  it  destroys.  The  principle 
to  be  extracted  from  all  the  cases  is,  that  the  law  will  not  lend 
its  support  to  a  claim  founded  upon  its  violation."  See  also 
Holman  v.  Johnson,  1  Cow^p.  341. 

Approving  of  the  doctrine  so  well  expressed  in  this  citation, 
our  conclusion  is,  that  the  second  position  of  the  plaintiff  is  not 

well  taken.    *    *    * 

Judgment  affirmed. 


TITLE  GUARANTY  CO.  v.  NICHOLS. 
Supreme  Court  of  United  States,  1911.    224  U.  S.  346. 

Mr.  Justice  Lurton.  Action  upon  a  bond  executed  by  the 
plaintiff  in  error  to  protect  the  Union  Bank  &  Trust  Company, 
of  Phoenix,  Arizona,  against  the  dishonesty  of  its  cashier. 
There  were  two  or  more  renewals.  Embezzlements  by  the  cash- 
ier occurred  during  the  currency  of  the  bond.  After  a  right 
of  action  had  accrued,  the  bond  was  assigned  to  the  defendant 
in  error,  who  brought  this  action  thereon. 

The  principal  defense  was  that  the  loss  was  due  to  the  neglect 
of  the  employer  to  supervise  the  conduct  of  the  employe  by 
making  such  monthly  examinations  of  his  accounts  as  it  agreed 
to  make  or  have  made.  There  was  a  jury  and  verdict  for  the 
plaintiff,  and  a  judgment  against  the  Surety  Company,  which 
was  affirmed  by  the  Supreme  Court.' 

A  number  of  errors  have  been  assigned  which  relate  to  this 
defense,  but  the  argument  has  turned  upon  those  which  in  dif- 
ferent ways,  raise  the  question  as  to  whether,  after  the  defend- 
ant in  error  had  made  out  a  prima  facie  case  by  proving  the 
bond  and  its  breach  by  a  refusal  to  indemnify  him  for  losses 
sustained  during  its  currency  through  the  dishonesty  of  the  em- 
ploye guaranteed,  the  onus  devolved  upon  the  Surety  Company 
to  plead  and  prove  that  the  loss  had  occurred  through  the  fault 
of  the  employer  in  not  making  the  monthly  examinations  which 
it  had  agreed  to  make.    The  trial  judge  ruled  that  the  onus  was 

8  Supreme  Court  of  the  Territory  of  Arizona. 


552  The  Answer,  [Chap.  V. 

upon  the  defendant,  and  this  ruling  has  been  affirmed  by  the 
Supreme  Court. 

"Whether  this  ruling  was  right  or  wrong  must  depend  upon 
whether  the  requirement  of  the  bond,  that  monthly  examinations 
of  the  books  of  the  employe  should  be  made,  constituted  a  con- 
dition precedent  or  a  condition  subsequent.  The  bond  on  its 
face  requires  the  employer  "to  take  and  use  all  reasonable  steps 
and  precautions  to  detect  and  prevent  any  act  upon  the  part 
of  the  employe  which  would  tend  to  render  the  company  liable 
for  any  loss."  It  also  provides  that  if  the  statements  by  the 
employer  in  the  application  "shall  be  untrue,  the  bond  shall  be 
void."  The  obligation  in  respect  to  examinations  of  the  em- 
ploye's accounts  is  found  in  the  application.    *    *    * 

There  was  never  any  question  but  that  liability  under  the 
bond  would  be  defeated  if  it  appeared  that  the  loss  attributable 
to  the  dishonesty  of  the  employe  was  due  to  the  neglect  of  the 
bank  to  make  the  monthly  examinations  required.  And  so  the 
jury  were  instructed.  The  question  was  whether  this  require- 
ment was  a  condition  precedent  to  liability  which  the  bank  was 
required  to  aver  and  prove  or  whether  it  was  a  defense  to  be 
made  out  by  the  defendant.  But  a  construction  which  makes 
the  bond  inoperative  until  the  employer  shows  that  it  had  made 
such  examinations  is  not  a  fair  and  reasonable  interpretation. 
The  distinctions  between  conditions  precedent  and  subsequent  is 
plain  enough.  The  condition  here  involved,  if  properly  a  con- 
dition at  all,  is  of  the  latter  class. 

The  coming  into  effect  of  a  contract  may  be  made  to  depend 
upon  the  happening  or  performance  of  a  condition.  But  a  con- 
dition subsequent  presupposes  a  contract  in  effect  which  may  be 
defeated  by  the  happening  or  performance  of  a  condition. 
"Where,  therefore,  an  action  is  upon  a  contract  subject  to  a  con- 
dition precedent,  the  performance  of  that  condition  must  be 
averred  and  proved ;  but  if  the  contract  sued  upon  is  subject  to 
a  condition  subsequent,  there  is  no  occasion  for  any  averment 
in  respect  to  the  condition.  It  is  a  matter  of  defense  which  must 
come  from  the  other  side.  Chitty  on  Pleading,  Vol.  1,  pp.  246, 
255. 

The  plaintiff  was  plainly  entitled  to  recover  upon  proving  the 
bond,  an  embezzlement  and  a  breach,  by  a  refusal  to  indemnify. 
It  was  not  obliged  to  aver  that  it  had  made  the  examinations 
which  it  agreed  should  be  made.    If  it  had  failed  in  that  duty, 


Sec.  2.]  New  Matter.  553 

it  was  for  the  Surety  Company  to  so  plead  and  prove.  Such, 
indeed,  was  the  course  of  the  pleading  in  this  case,  and  a  breach 
of  the  agreement  to  make  such  examinations  was  set  up  as  a 
defense.  There  was  no  error  in  the  ruling  of  the  court  that  the 
onus  was  upon  the  Surety  Company  to  prove  a  breach  of  the 
obligation  to  make  such  examinations.  Piedmont  &  A.  L.  Ins. 
Co.  V.  Ewing,  92  U.  S.  377;  American  Credit  Indem.  Co.  v. 
Wood,  73  Fed.  Rep.  81 ;  Redman  v.  Etna  Ins.  Co.,  49  Wisconsin 
431 ;  Murray  v.  N.  Y.  Life  Ins.  Co.,  85  N.  Y.  236 ;  Freeman  v. 
Traveler's  Ins.  Co.,  144  Massachusetts  572.    *    *    * 

Judgment  affirmed. 


WEAVER  V.  BARDEN. 

Court  of  Appeals  of  Neiv  York,  1872.    49  N.  Y.  286. 

Appeal  from  judgment  of  the  General  Term  of  the  Supreme 
Court  in  the  fourth  judicial  department,  entered  upon  an  order 
reversing  a  judgment  in  favor  of  defendant  (which  was  en- 
tered upon  decision  of  the  court  at  Special  Term),  and  directing 
a  judgment  in  favor  of  plaintiff. 

Action  to  compel  a  transfer  of  thirteen  shares  of  the  stock  of 
the  Knickbocker  Stage  Company  of  New  York.  The  facts  suf- 
ficiently appear  in  the  opinion. 

Grover,  J.*  *  *  *  The  complaint,  in  substance,  alleged 
facts  showing,  as  claimed  by  the  plaintiff,  that  he  was  the  o%vTier 
of  thirteen  shares  of  stock  in  an  incorporated  stage  company  in 
New  York,  which  had  been  transferred  to  one  L.  J.  Weaver, 
for  the  plaintiff,  which  the  latter  had  transferred  to  defendant, 
as  the  defendant  claimed,  in  payment  of  a  debt  due  from  the 
defendant"  to  him,  and  prayed  that  the  defendant  might  me  ad- 
judged to  assign  and  deliver  such  stock  to  the  plaintiff  and  pay 
him  the  dividends  received  thereon.  The  answer  w^as  a  general 
denial.  To  establish  a  cause  of  action,  the  plaintiff  was  bound 
to  prove  that  he  was  the  legal  owner  of  the  stock  or  equitably 

4  Statement  condensed  and  part  case  that  the  claim  was  that  L.  J. 

of  opinion  omitted.  "Weaver  was  indebted  to  defendant. 

6  This  is  evidently  a  mistake,  as  Ed. 
it  appears  from  other  parts  of  the 


554  The  Answer.  [Chap.  V. 

entitled  to  the  same  as  against  the  defendant  under  this  answer ; 
the  defendant  had  the  right  to  give  evidence  controverting  any 
fact  necessary  to  be  established  by  the  plaintiff  to  authorize  a 
recovery,  but  not  to  procure  a  defense  founded  upon  new  mat- 
ter. Upon  the  trial,  it  was  proved  by  the  plaintiff  that  one 
Finch  had  formerly  owned  the  stock.  That  he  assigned  the  same 
with  other  property  to  L.  J.  Weaver  and  one  Hutchins,  in  trust 
for  his  creditors,  of  whom  the  plaintiff  was  one.  That  Finch 
compromised  with  his  creditors  thereafter,  and  made  an  agree- 
ment with  the  plaintiff  to  take  the  stock  in  question,  in  satisfac- 
tion of  the  balance  of  his  debt.  That  under  this  agreement  the 
stock  in  question  was  transferred  to  L.  J.  Weaver,  the  son  of 
the  plaintiff,  and  in  some  matters  his  agent  in  New  York,  with 
intent  to  satisfy  the  plaintiff's  debt.  That  the  plaintiff  was 
ignorant  of  the  stocks  being  transferred  to  L.  J.  Weaver,  or  of 
the  same  being  placed  in  his  name  upon  the  books  of  the  com- 
pany. That  L.  J.  Weaver  subsequently  transferred  the  same  to 
the  defendant,  who  refused  to  transfer  the  same  to  the  plaintiff, 
upon  being  requested  to  do  so  or  to  account  for  and  pay  the 
dividends  to  the  plaintiff.  The  facts  proved  showed  that  the 
legal  title  to  the  stocks  was  in  L.  J.  Weaver.  Finch,  the  former 
owner,  had  procured  the  same  to  be  assigned  to  him  by  his 
trustee,  without  indicating  any  interest  in  any  other  person 
therein.  It  was  registered  in  his  name  upon  the  books  of  the 
company;  but  the  facts  proved  show  that,  as  between  him  and 
the  plaintiff,  the  equitable  title  was  in  the  latter,  for  whom  L. 
J.  Weaver  held  the  stock  as  trustee.  That  L.  J.  Weaver  trans- 
ferred the  stock  to  the  defendant,  who  claimed  the  title  by 
virtue  thereof.  This  established  the  plaintiff's  right  to  the  stock 
as  against  the  defendant,  unless  he  was  a  bona  fide  purchaser 
from  L.  J.  Weaver.  (Crocker  v.  Crocker,  31  N.  Y.  507.)  To 
meet  this  case,  the  defendant  offered  to  prove  in  substance  that 
he  was  a  bona  fide  purchaser  of  the  stocks  from  L.  J.  Weaver. 
The  Special  Term  held,  overruling  the  plaintiff's  objection,  that 
this  was  admissible  under  the  answer.  This  was  error.  Under 
the  general  denial  the  defendant  could  not  introduce  evidence 
tending  to  show  a  defense  founded  upon  new  matter,  but  such 
only  as  tended  to  disprove  any  fact  that  the  plaintiff  must  prove 
to  sustain  his  case.  The  plaintiff  was  not  bound  to  prove,  for 
this  purpose,  that  the  defendant  was  not  a  bona  fide  purchaser 
for  value  of  L.  J.  Weaver.     It  was  enough  for  him  to  show  his 


Sec.  2.]  New  Matter.  555 

equitable  title  to  the  stock  in  the  first  instance,  and  then  it  was 
incumbent  upon  the  defendant  to  show  that  this  equitable  title 
was  barred  as  against  him.  Showing  that  he  was  a  bona  fide 
purchaser  from  L.  J.  Weaver  would  bar  this  equity;  but  this 
was  a  defense  founded  upon  new  matter,  and  should  have  been 
set  up  in  the  answer,  and  then  the  plaintiff  would,  perhaps,  have 
been  prepared  to  meet  it.  Had  the  evidence  been  excluded  by 
the  Special  Term,  the  defendant  could,  if  so  advised,  have  taken 
steps  to  procure  an  amendment  of  his  answer,  so  as  to  make  the 
defense  admissible.  Had  the  General  Term  reversed  the  judg- 
ment upon  the  ground  that  this  defense  was  improperly  ad- 
mitted, a  new  trial  should  have  been  ordered  to  enable  the  de- 
fendant to  procure  such  amendment,  which  the  Special  Term 
has  power  to  grant,  upon  terms  deemed  reasonable.  Had  the 
General  Term  ordered  a  new  trial  and  the  defendant  had  ap- 
pealed therefrom,  tlse  order  must  have  been  afiirmed  by  this 
court,  and  judgment  absolute  for  the  plaintiff  ordered.  But  the 
General  Term  did  not  order  a  new  trial,  but  gave  judgment 
absolute  for  the  plaintiff.  Such  a  disposition  of  the  case  can 
only  be  sustained  when  it  is  apparent  that  no  evidence  which 
the  defendant  can  give,  under  any  answer  which  the  Special 
Term  has  the  discretionary  power  to  authorize,  will  establish  a 
defense,  when,  as  in  the  present  case,  the  defendant  has  had  no 
occasion  to  apply  for  the  exercise  of  this  discretion.  *  *  * 
Judgment  reversed  and  new  trial  ordered. 


LITTLE  V.  REED. 

Supreme  Court  of  Missouri,  1897.    141  Mo.  242. 

Barclay,  P.  J.  This  action  was  begun  April  19,  1895.  The 
plaintiff  is  J.  M.  Little.  The  defendants  are  Jas.  H.  Roid,  as 
administrator  of  the  estate  of  Daniel  Bentley,  deceased,  Matilda 
Bentley  (the  widow  of  Daniel),  and  Joseph  Little.  The  objects 
of  the  action  are  to  foreclose  a  mortgage  or  deed  of  trust  con- 
veying certain  real  estate,  and  to  obtain  a  judgment  for  the  debt 
thereby  secured.  The  deed  of  trust  in  the  nature  of  a  mortgage, 
which  is  the  foundation  of  the  action,  was  executed  by  Daniel 
Bentley  and  his  wife,  Matilda,  October  3,  1882,  to  secure  a  note 


556 


The  Answer.  [Chap.  V. 


to  plaintiff  for  $650,  payable  twelve  months  after  date,  with  in- 
terest at  eight  percent  per  annum  to  be  compounded  annually. 
Joseph  Little  was  named  as  trustee,  with  certain  powers  of  sale 
in  event  of  default.  This  deed  of  trust  was  properly  recorded. 
The  land  conveyed  thereby  as  security  consisted  of  some  ninety 
acres  in  Boone  county. 

June  8,  1892,  Mr.  Bentley  died  intestate.  His  widow  remained 
in  possession  of  the  land ;  but  no  administration  was  had  upon 
his  estate  until  April  5,  1895,  when  the  probate  court  ordered 
defendant  Jas.  H.  Reid,  to  take  charge  as  public  administrator. 
The  foregoing  exhibits  the  special  features  of  the  petition,  which 
in  other  respects  states  an  ordinary  case  for  the  foreclosure  of 
the  mortgage.  The  trustee  and  the  widow,  who  are  defendants, 
filed  no  answer.  The  administrator  defended.  He  admitted  the 
death  of  Mr.  Bentley  and  his  own  status  as  personal  represent- 
ative, but  denied  the  other  allegations  of  the  petition.  The  an- 
swer also  set  up  the  following  special  defenses : 

''And  for  his  further  answer,  this  defendant  says  that  plain- 
tiff is  estopped  from  bringing  or  maintaining  this  suit  for  the 
reason  that  more  than  ten  years  have  expired  prior  to  the  in- 
stitution of  this  suit  since  the  execution  of  the  note  and  deed  of 
trust  described  in  plaintiff's  petition,  and  that  the  same  are  now 
more  than  ten  years  old  and  are  therefore  barred  by  the  statute 
of  limitations  of  the  State  of  Missouri,  which  this  defendant  sets 
up  and  pleads  as  a  special  defense  in  bar  of  plaintiff's  recovery 
in  this  action.  And  this  defendant  would  also  plead  and  rely 
upon,  as  a  special  defense  to  the  foreclosure  of  the  deed  of  trust 
described  in  plaintiff's  petition,  the  act  of  the  General  Assembly 
of  the  State  of  Missouri,  passed  and  approved  February  18th, 
1891."    The  reply  to  the  answer  is  a  general  denial. 

At  the  trial  defendant  offered  to  prove  that  the  deceased,  Mr. 
Bentley,  had  been  in  adverse,  open,  notorious  and  peaceable  pos- 
session of  the  premises  in  controversy,  claiming  the  same  against 
the  interest  of  everyone,  including  plaintiff,  from  1872  until  his 
death  in  1892.  The  learned  trial  judge,  however,  rejected  that 
offer  and  excluded  all  testimony  thereunder.  It  will  not  be  nec- 
essary to  go  into  further  particulars  of  the  trial.  It  will  suffice 
to  say  that  the  court  ultimately  found  for  plaintiff,  decreed  a 
foreclosure,  adjudged  the  sum  of  $1,729.75  to  be  due  on  the  note 
secured,  and  directed  the  demand  to  be  certified  to  the  probate 
court  for  allowance  of  any  residue  that  might  remain  due,  after 


Sec.  2.]  New  Matter,  557 

the  foreclosure  sale  which  was  decreed.  The  defendant  ap- 
pealed from  the  decree,  after  certain  motions  and  other  steps  in 
the  circuit  court. 

The  only  question  we  shall  touch  at  this  time  is  whether  or 
not  this  court  has  jurisdiction  of  this  appeal.  Counsel  appear 
entirely  willing  to  have  the  merits  considered  here.  But  it  is 
part  of  our  duty  to  observe  the  limitations  on  our  authority, 
and  hence  to  examine  into  the  questions  just  stated.  McGregor 
V.  Pollard  (1895)  130  Mo.  334  (32  S.  W.  Rep.  640.) 

We  discern  no  ground  on  which  jurisdiction  over  this  case  can 
be  maintaind  by  this  court.  The  only  class  of  cases  belonging 
here  that  might  possibly  be  suggested  as  including  the  case  at 
bar  is  the  class  "involving  title  to  real  estate."  Const.  1875, 
art.  6,  sec,  12,  But  it  has  been  often  declared  that  title  is  not  in- 
volved in  a  mere  suit  to  foreclose  a  mortgage.  State  ex  rel.  v. 
Court  of  Appeals  (1877),  67  Mo.  199;  Pinneo  v.  Knox  (1881), 
100  111.  471;  Bailey  v.  Winn  (1890),  101  Mo.  649  (12  S.  W. 
Rep.  1045)  ;  Barber  Pav.  Co.  v.  Hezel  (1897),  139  Mo.  228  (39 
S.  W.  Rep.  781). 

The  defenses  put  forward  by  defendant  in  his  answer  only 
assert  that  the  foreclosure  is  barred  by  the  limitation  law.  The 
offer  of  defendant  to  show  adverse  title  (as  against  the  mort- 
gage) was  beyond  the  issues  of  the  pleadings.  The  plaintiff 
objected  to  entering  that  foreign  field,  and  the  court  sustained 
the  objection.  The  rejected  offer  cannot  be  properly  held  to 
have  enlarged  the  paper  issues  in  the  case.  The  general  denial 
in  the  answer  did  not  raise  an  issue  of  title  in  a  ease  of  this  sort. 
Nor  could  that  issue  be  projected  into  the  cause  at  the  trial,  in 
the  manner  attempted,  against  the  protest  and  objection  of  the 
plaintiff. 

It  is  true  that,  in  actions  of  ejectment  title^  by  adverse  pos- 

6  Paige,  J.,  in  Lain  v,  Shepard-  allowed  to  prove  anything  tending 
son,  23  Wis,  224,  (1868):  *  *  *  to  defeat  the  title  which  the  plain- 
**The  complaint  in  an  action  to  tiff  attempts  to  establish.  He  can- 
recover  real  estate  is  general.  It  not  be  bound  to  allege  specific  ob- 
does  not  set  forth  the  plaintiff's  jections  to  a  title  which  the  corn- 
title,  but  simply  alleges  ownership  plaint  does  not  disclose,  and  which 
and  a  right  to  the  possession.  Un-  he  may  have  no  knowledge  of  until 
der  this  he  is  allowed  to  show  any  it  is  revealed  by  the  evidence  on 
title  that  he  can.  And  from  the  the  trial."  »  *  « 
necessity  of  the  ease,  the  defend-  See  also  Phillips  v.  Hagart,  113 
ant,  under  a  mere  denial,  must  be  Cal.   552,    (1896),   that    an    answer 


558 


The  Answer.  [Chap.  V. 


session  may  be  shown  under  a  general  denial  of  the  allegation  of 
title  in  plaintiff.  That  rule  must  be  accepted  as  settled  by  a  line 
of  decisions  in  this  State.  Nelson  v.  Bradhack  (1869),  44  Mo. 
596;  Bledsoe  v.  Simms  (1873),  53  Mo.  307;  Stocker  v.  Green 
(1888),  94  Mo.  280  (7  S.  W.  Rep.  279).  But  the  proposition 
established  by  those  decisions  gives  no  sanction  to  the  wide  ex- 
tension of  its  application  sought  by  the  defendant  here.  Under 
the  answer  (of  which  a  part  has  been  above  quoted)  the  deed 
of  trust  must  be  considered  admitted.  The  present  right  to  en- 
force it  is  disputed  owing  to  the  lapse  of  time,  but  its  original 
effect  as  a  conveyance  of  the  title  is  plainly  conceded.  Such  is 
a  fair  and  reasonable  interpretation  of  the  answer  of  the  admin- 
istrator. The  other  defendants  admitted  the  plaintiff's  entire 
contention  by  their  default.  In  that  state  of  the  pleadings  the 
offer  of  proof  of  an  adverse  title  was  clearly  irrelevant.  It 
was  not  admissible  under  the  principles  of  pleading  discussed 
in  the  group  of  precedents  last  cited,  nor  for  any  reason  that 
has  as  yet  been  suggested. 

In  our  judgment  the  Supreme  Court  has  no  jurisdiction  of 
this  appeal.  It  is  therefore  certified  to  the  Kansas  City  Court 
of  Appeals.     Macfarlane,  Robinson  and  Brace,  JJ.,,  concur. 


JOHNSON  V.  OSWALD. 

Supreme  Court  of  Minnesota,  1888.    38  Minn.  550. 

GiLFiLLAN,  C.  J. :  This  action  was  for  conversion  of  personal 
property.  The  complaint  alleges,  generally,  without  referring 
in  any  way  to  the  means  by  which  he  acquired  title,  that  the 
chattel  was  the  personal  property  of  the  plaintiff,  and  that  he 
was  in  possession  of  it,  and  that  the  defendants  caused  it  to  be 
wrongfully  taken  from  him.  The  answer  is  a  general  denial. 
The  defendants  offered  to  prove  in  substance  that  they,  owning 
the  chattel,  were  induced  to  sell  to  one  Larson,  from  whom  plain- 
setting  up  defendant's  title  in  an  ter  admissible  under  a  general 
action  of  ejectment  amounts  to  no  denial  in  an  action  of  ejectment, 
more  than  a  denial  of  plaintiff's  which  goes  to  show  the  plaintiff 
title.  A.nd  so  in  Dale  v.  Hunne-  without  right  to  possession." 
man,  12  Neb.  221,  (1881),  any  mat- 


Sec.  2.]  New  Matter.  559 

tiff  claims  to  derive  his  title,  by  his  (Larson's)  false  and  fraudu- 
lent representations,  and  that  upon  discovering  the  fraud  they 
rescinded  the  sale,  and  retook  the  chattel.  There  was  already 
in  the  case  evidence  sufficient  to  go  to  the  jury  that  plaintiff  was 
not  a  bona  fide  purchaser  of  Larson's  title.  The  court  below 
excluded  the  evidence  so  offered. 

The  question  raised  is,  can  a  defendant  in  an  action  for  con- 
version, where  the  complaint  contains  only  the  simple  allegation 
of  title  in  plaintiff,  prove  under  a  general  denial  that  the  sale 
under  which  plaintiff  claims  title  was  void  so  as  to  pass  no  title 
by  reason  of  fraud?  The  general  rule  is  that  "anything  that 
tends  to  controvert  directly  the  allegations  in  the  complaint  may 
be  shown  under  the  general  denial."  Bond  v.  Corbett,  2  INIinn. 
248  (Gil.  209).  Upon  this  rule  it  is  held  that  in  an  action  in 
replevin  or  for  conversion''  a  denial  of  the  simple  allegation  of 
plaintiff's  title  will  admit  proof  of  title  in  defendant  or  a  third 
person— Caldwell  v.  Bruggerman,  4  Minn.  70  (Gil.  190)  ;  Jones 
V.  Rahilly,  16  Minn.  320  (Gil.  283)  ;  McCleUand  v.  Nichols,  24 
Minn.  176 ;  Robinson  v.  Frost,  14  Barb.  536 ;  Davis  v.  Hoppock, 
6  Duer  254;  Emerson  v.  Thompson,  18  N.  W.  Rep.  503— for 
such  proof  directly  controverts  the  allegation  of  plaintiff's  title 
in  the  complaint.  In  the  case  of  a  sheriff,  defendant,  who  seeks 
to  justify  his  taking  under  process,  on  the  claim  that  the  sale  to 
plaintiff  was  in  fraud  of  the  creditors  of  the  person  against 
whom  the  process  runs,  it  has  been  held  that  a  general  denial  of 
plaintiff's  title  is  not  sufficient.  Frisbee  v.  Langworthy,  11  Wis. 
375.  This  rule  in  this  state,  in  the  case  of  an  officer  justifying 
■under  process  is  stated  in  Kenney  v.  Goergen,  36  INIinn.  190  (31 
N.  W.  Rep.  210),  to  be  that  under  the  denial  of  plaintiff's  title, 
and  the  allegation  of  title  in  the  person  against  whom  the  process 
runs,  he  may,  without  specially  pleading  it,  show  fraud  as  to 
creditors  in  the  sale  by  such  person  to  plaintiff.  There  is  some 
reason  for  requiring  from  the  officer  in  such  a  case  somewhat 
fuller  pleading  than  from  the  defendant  in  a  case  like  this.  A 
sale  in  fraud  of  creditors  is  valid  and  effectual,  and  passes  the 

7  At  common  law  the  action  of  diate  possession,  which  was  implied 
trover  apparently  did  not  admit  of  in  the  declaration,  or  a  denial  thnt 
a  true  plea  in  justification  or  ex-  the  acts  of  the  defendant  amounted 
cuse,  because  all  such  defences  re-  to  a  conversion,  Dorrington  v.  Car- 
solved  themselves  into  either  a  de-  ter,  1  Exch.  566,  (1847);  Young 
nial   of  plaintiff's   right   to  imme-  v.  Cooper,  6  Exch.  259,  (1851). 


560  The  Answer.  [Chap.  V. 

title  as  between  the  parties.  Only  creditors  who  are  defrauded 
by  it  can  avoid  it,  and  there  is  some  reason  for  requiring  one 
who  seeks  to  avoid  it  to  put  himself  in  the  place  of  a  defrauded 
creditor.  But  in  a  case  like  this,  if  the  facts  be  as  defendant 
sought  to  prove  them,  the  sale  was  void,  and  Larson  got  no  title. 
As  between  the  parties  to  the  sale  and  to  the  action,  it  remained 
in  defendant,  unless  plaintiff  is  a  hona  fide  purchaser.  A  gen- 
eral denial  puts  in  issue  only  the  facts  alleged  in  the  complaint. 
Thus,  if  this  complaint,  instead  of  alleging  plaintiff's  title,  had 
alleged  the  facts  through  which  it  was  derived,  as  had  it  alleged 
the  sale  by  defendant  to  Larson,  and  title  derived  by  plaintiff 
from  him,  a  general  denial  would  enable  defendant  only  to  dis- 
prove those  facts,  but  not  to  prove  other  facts  to  vary  their  legal 
effect.  In  such  case  the  fraud  could  not  have  been  proved  with- 
out pleading  it.  The  case  would  then  have  been  analogous  to 
Finley  v.  Quirk,  9  Minn.  194  (Gil.  179),  in  which  a  denial  of 
the  sale  of  a  horse  was  held  to  raise  an  issue  only  on  the  sale 
in  point  of  fact,  and  did  not  justify  evidence  that  it  was  made 
on  Sunday,  so  as  to  be  illegal.  Under  the  denial  in  that  case  the 
defendant  might  have  followed  any  line  of  evidence  that  would 
have  disproved  the  sale  in  point  of  fact.  So,  under  a  denial  of 
the  pleadable  fact  of  title,  the  defendant  may  introduce  any 
evidence  that  will  disprove  such  alleged  fact.  In  many  cases  it 
might  put  a  defendant  to  great  disadvantage  if,  when  the  com- 
plaint alleges  only  the  fact  of  title,  without  disclosing  by  what 
means  plaintiff  claims  to  have  acquired  it,  defendant  must  an- 
ticipate plaintiff's  evidence  as  to  the  source  of  title,  and  plead 
expressly  facts  to  do  away  with  the  effect  of  it. 

It  was  error  to  exclude  the  evidence  offered,  and  there  must 
be  a  new  trial. 

Order  reversed. 


RICHTMEYER  v.  REMSEN. 

Court  of  Appeals  of  New  York,  1868.    38  N.  Y.  206. 

Action  to  recover  of  the  defendant,  sheriff  of  Kings  County, 
the  amount  of  an  execution  against  one  Searle,  issued  out  of  the 
Supreme  Court  against  the  body  of  the  judgment  debtor,  and 


Sec.  2.]  New  Matter.  561 

delivered  to  the  defendant  for  collection.  The  defendant  ar- 
rested Searle,  and  duly  admitted  him  to  the  liberties  of  the  jail 
of  Kings  County.  Searle,  after  being  so  admitted,  escaped  there- 
from to  the  city  of  New  York,  and  while  so  absent  therefrom, 
this  action  was  commenced.  Tlie  defendant,  in  his  answer,  al- 
leged that  he  had  admitted  Searle  to  the  liberties  of  the  jail,  and 
that  Searle,  after  his  escape  therefrom,  voluntarily  returned 
thereto  before  the  commencement  of  the  action.  At  the  close  of 
the  plaintiff's  case,  the  defendant  moved  for  a  nonsuit,  upon  the 
grounds,  first,  that  the  judgment-roll  failed  to  show  that  the 
execution  against  the  body  of  Searle  was  authorized;  second, 
that  it  appeared  from  the  evidence,  that  Searle  was  detained  off 
from  the  limits  by  the  fraud  and  connivance  of  the  plaintiff. 
The  motion  was  denied,  and  the  defendant's  counsel  excepted. 
The  defendant's  counsel  then  offered  to  prove  that  Searle  would 
have  returned  to  the  jail  limits  before  the  commencement  of  the 
action  had  he  not  been  prevented  from  so  doing  by  the  fraudu- 
lent acts  of  the  plaintiff's  agents.  This  evidence  was  objected  to 
and  rejected,  upon  the  ground  that  no  such  defense  was  set  up 
in  the  answer,  and  the  defendant's  counsel  excepted.  The  de- 
fendant's counsel  moved  to  amend  the  answer  by  alleging  the 
above  facts.  The  motion  was  denied,  and  the  defendant's  coun- 
sel excepted.  The  defendant's  counsel  excepted  generally  to  the 
charge  to  the  jury.  The  jury  found  a  verdict  for  the  plaintiff, 
and  ordered  the  exceptions  to  be  first  heard  at  the  General 
Term.  The  exceptions  were  heard,  and  judgment  for  the  plain- 
tiff ordered  upon  the  verdict,  from  which  judgment  the  defend- 
ant appealed  to  this  court. 

Grover,  J. :  The  judgment  record  in  the  action  of  the  plain- 
tiff against  Searle  showed  that  one  Johnson  had  a  cause  of  action 
against  the  former  for  the  conversion  of  personal  property ;  that 
Johnson  assigned  such  cause  of  action  to  the  plaintiff,  who  com- 
menced the  action  thereon  as  assignee  against  Searle,  and  re- 
covered the  judgment  upon  which  the  execution  was  issued.  The 
ground  of  objection  to  the  record  was,  that  the  cause  of  action 
was  not  assignable.  There  are  two  answers  to  this:  First,  the 
objection,  if  available,  could  only  be  taken  in  the  action  against 
Searle.  The  recovery  of  the  judgment  in  that  case  is  conclusive 
upon  the  right  of  the  plaintiff  thereto  upon  the  parties  in  this 
action.  Second,  the  cause  of  action  thereon  was  assignable,  and 
the  assignee  could  maintain  an  action  thereon  in  his  own  name. 


562  The  Answer.  [Chap.  V. 

(Haight  V.  Hoyt,  19  N.  Y.  464.)  A  recovery  of  judgment  for 
the  conversion  of  personal  property  authorizes  an  execution 
against  the  person  of  the  defendant.  (Wessen  v.  Chamberlin, 
3  N.  Y.  331.)  The  only  remaining  question  in  this  case  is, 
whether  the  defense,  that  Searle  would  have  returned  to  and 
upon  the  liberties  of  the  jail  before  the  commencement  of  the 
action,  had' he  not  been  prevented  by  the  fraud  of  the  plaintiff, 
was  inadmissible  under  the  answer,  no  such  ground  of  defense 
having  been  alleged  therein.  The  escape  in  the  present  case  was 
negligent.  In  such  cases,  recaption  before  suit  brought  is  a  de- 
fence, and  if  such  recaption  is  prevented  by  the  fraud  of  the 
plaintiff  or  his  agent,  that,  also,  would  constitute  a  defense  to 
the  action.  A  voluntary  return  of  the  debtor  into  custody  before 
suit  brought,  is  equivalent  to  and  constitutes  a  recaption  by  the 
sheriff.  There  is  no  dispute  as  to  those  rules  of  law.  The  ques- 
tion is,  whether  these  grounds  of  defense  must  be  set  up  in  the 
answer.  The  code  (§  249)  provides  that  the  answer  must  con- 
tain, first,  a  general  or  specific  denial  of  each  material  allegation 
of  the  complaint  controverted  by  the  defendant,  etc. ;  second,  a 
statement  of  any  new  matter  constituting  a  defense,  etc.  The 
question  then  is,  whether  the  defense  offered  consisted  of  new 
matter,  or  whether  it  merely  disproved  any  of  the  material  al- 
legations of  the  complaint.  All  that  the  plaintiff  must  allege 
and  prove,  to  maintain  his  action,  is  the  recovery  of  the  judg- 
ment, the  issuing  and  delivery  of  the  execution  to  the  sheriff, 
the  capture  of  the  debtor  by  the  sheriff  upon  the  execution,  and 
the  escape  from  custody  before  suit  brought  against  the  sheriff 
therefor.  We  have  seen  that  the  sheriff  may  defend  the  action 
by  proving  a  recaption  of  the  defendant  before  suit  brought,  or 
facts  legally  excusing  him  from  making  such  recaption.  Proof 
of  such  facts  do  not  controvert  any  allegation  of  the  complaint. 
It  is,  therefore,  new  matter  constituting  a  defense  to  the  action, 
and,  under  the  Code,  is  inadmissible,  unless  set  up  in  the  answer. 
The  court,  therefore,  correctly  held  that  the  proof  offered  was 
inadmissible  under  the  answer.  The  motion  of  the  defendant, 
made  upon  the  trial  for  leave  to  amend  the  answer,  was  ad- 
dressed to  the  discretion  of  the  court,  and  its  exercise  cannot  be 
reversed  by  this  court.  The  answer  does  not  contain  a  general 
denial,^  and,  therefore,  the  question  does  not  arise  whether  the 

8  Where  the  answer  contains  no      up  an  affirmative  defence,  all  mate- 
general  or  specific  denial,  but  sets      rial    allegations    of    the    complaint 


Sec.  2.]  New  Matter.  568 

provision  of  the  Revised  Statutes,  authorizing  public  officers, 
under  the  plea  of  the  general  issue,  to  give  any  defense  in  evi- 
dence, is  repealed  by  the  Code.  There  was  no  legal  error  com- 
mitted in  excluding  the  defense  in  this  case. 

Judgment  affirmed. 


SPARLING  V.  CONWAY. 
Supreme  Court  of  Missouri,  1882.     75  Mo.  510. 

Hough,  J. :  This  was  an  action  for  malicious  prosecution. 
The  answer  was  a  general  denial,  and  the  defense  relied  upon  at 
the  trial  was,  that  the  defendant  acted  in  good  faith  upon  the 
advice  of  competent  counsel.  There  was  a  verdict  and  judgment 
for  the  defendant,  which  was  affirmed  by  the  court  of  appeals. 

The  plaintiff  contends  that  the  defense  stated  should  have 
been  pleaded  in  order  to  be  made  available  by  the  defendant. 
We  are  of  a  different  opinion.  The  testimony  offered  and  re- 
ceived on  this  subject  was  admissible  to  disprove  the  allegation 
of  malice  contained  in  the  petition  and  sought  to  be  established 
by  the  plaintiff,  and  if  the  defendant  had  set  it  forth  in  his 
answer,  he  would  only  have  pleaded  his  evidence.^    *    *    * 

Judgment  affirmed. 


.  LANGTON  v.  HAGERTY. 

Supreme   Court  of  Wisconsin,  1874.     35   Wis.  150. 

Action  for  slander.    The  complaint  states  five  counts  or  causes 
of  action,  charging  the  speaking  of  the  same  words,  substan- 

stand  admitted.     Marshall  v.  Fire  for  false  imprisonment,  the  defence 

Ina.  Co.,  43  Mo.  586,   (1869).  of  probable  cause  to  arrest  on  sus- 

9  For   the   same   reason   probable  pieion   must   be    specially    pleaded, 

cause  may  be  proved  under  a  gen-  S.  S.  Co.  v.  Williams,  69   Ga.  251, 

eral   denial,   Kellogg   v.   Sehurman,  (1882);   Scheer  v.  Keown,  34  Wis. 

18  Wash.  293,   (1897).  349,    (1874);   Panjiris  v.  Hartman, 

Compare  the  rule  that  in  actions  196  Mo.  539,  (1906). 


564  The  Answer.  [Chap,  V. 

tially,  but  at  different  times,  and  in  the  presence  and  hearing  of 
different  persons.  The  introductory  averments  and  the  innuen- 
does are  the  same  in  each.  Hence,  a  perusal  of  one  count  will 
show  the  structure  of  the  whole  complaint.  The  first  cause  of 
action  is  as  follows:  "That  on  or  about  the  12th  day  of  October, 
1872,  at  the  city  of  Green  Bay,  in  said  Brown  cpunty,  the  de- 
fendant, wilfully  and  maliciously  designing  and  intending  to 
injure  and  degrade  this  plaintiff  in  his  character,  and  to  bring 
plaintiff  into  public  infamy  and  disgrace,  wilfully  and 
maliciously  spoke,  published  and  declared  of  and  concerning 
this  plaintiff,  in  the  presence  and  hearing  of  one  N.  L.  Barber 
and  divers  other  persons,  the  false,  scandalous  and  defamatory 
words  following,  to-wit:  *He  (meaning  the  plaintiff)  murdered 
the  man  (meaning  one  Michael  Nehill),  and  stole  all  of  his 
money  from  him,  and  I  saw  him  do  it,'  meaning,  intending  and 
charging  thereby,  that  this  plaintiff  had  been  guilty  of  the 
crimes  of  murder  and  larceny;  that  plaintiff  was  thereby 
greatly  injured  in  his  good  name,  fame  and  character,  to  his 
damage  three  thousand  dollars." 

Each  count  is  separately  answered;  but,  except  the  reference 
in  each  to  the  number  of  the  count  which  it  purports  to  answer, 
the  answers  are  alike.  Each  contains  a  general  denial  of  the  al- 
legations of  the  count  to  which  it  responds,  and,  in  addition 
thereto,  the  following  averments:  "And  for  a  further  answer 
to  the  plaintiff's  (first)  alleged  cause  of  action,  the  defendant 
avers  that  before  the  speaking  of  the  words,  'he  murdered  the 
man,'  complained  of,  to-wit,  on  or  about  the  7th  day  of  Decem- 
ber, 1868,  at  the  city  of  Green  Bay,  Brown  county,  in  this  state, 
the  plaintiff  above  named  did  shoot  and  kill  one  Michael  Nehill, 
and  whatever  was  said  by  the  defendant  in  relation  to  the  killing 
of  the  said  Michael  Nehill  as  aforesaid,  was  said  to  the  plaintiff 
personally,  believing  the  same  to  be  true,  and  without  any  malice 
towards  the  plaintiff  or  design  to  do  him  injury  in  his  good 
name,  fame,  credit  or  otherwise."  The  whole  answer  concludes 
with  a  notice  applicable  to  each  particular  answer,  which  is  as 
follows:  "All  of  which  above  facts  the  defendant  will  give  in 
evidence  on  the  trial  of  this  action  in  mitigation  of  any  damage 

the  said  plaintiff  may  by  law  be  entitled  to  recover  therein." 

«    *    • 

The  jury  found  for  the  plaintiff,  and  assessed  his  damages 
at  $500.    A  motion  to  set  aside  the  verdict  and  for  a  new  trial 


Sec.  2.]  New  Matter.  565 

was  denied  by  the  court,  and  judgment  was  duly  entered  for  the 
plaintiff  pursuant  to  the  verdict. 

The  defendant  appealed  to  this  court. 

Lyon,  J. :  *  *  *  Under  the  pleadings  it  was  not  a  ques- 
tion for  the  jury  whether  the  killing  of  Nehill  was  a  justifiable 
or  a  felonious  homicide.  The  defendant  did  not  aver  in  his 
answer  the  truth^^  of  the  words  spoken  by  him ;  and,  failing  to 
do  so,  he  is  precluded,  by  well-settled  rules  of  law,  from  proving 
that  they  were  true.  He  is,  therefore,  in  precisely  the  same  posi- 
tion as  though  he  had  expressly  admitted  in  his  answer  that  such 
killing  is  not  murder.  Further,  we  held  in  Wilson  v.  Noonan,^ 
[35  Wis.  321]  that  extrinsic  facts  upon  which  the  defendant  re- 
lies to  mitigate  the  damages,  must  be  stated  in  the  answer,  or 
they  will  not  be  available  to  him.  The  answer  does  not  aver  that 
the  killing  of  Nehill,  if  not  murder,  was  manslaughter.  Under 
the  pleadings,  all  that  the  court  could  do  was  to  submit  it  to 
the  jury  to  say  from  the  evidence  whether,  in  view  of  all  the 
circumstances,  the  defendant  could  honestly  have  believed,  and 
whether  he  did  believe,  when  he  spoke  the  words,  that  the  plain- 
tiff had  been  guilty  of  the  crimes  charged  against  him.  The 
court  so  instructed  the  jury  in  substance  and  effect,  and  prop- 
erly refused  to  submit  to  them  the  question  of  the  character  of 
the  homicide,  whether  justifiable  or  criminal.^ 

A  very  considerable  portion  of  the  charge  to  the  jury  was  in 
strict  accordance  with  the  rules  of  law  above  stated,  and  that 
portion  requires  no  further  notice.     *     *     * 

Judgment  affirmed. 


10  It  has  been  held  that   a  gen-  mitigation  under  the  general  issue, 

eral  allegation  that  the  words  were  Smith    v.    Richardson,    Willes,    20, 

true    is    insufficient    and    that    the  (1737). 

facts   must    be    specifically    stated,  2  And  so  in  Donaghue  v.   Gaffy, 

Wachter  v.  Quenzer,  29  N.  Y.  547,  53  Conn.  43,  (1885),  though  it  was 

(1864);    Bingham    v.    Gaynor,    203  urged    by    counsel    that    since    the 

N.   Y.   27,    (1911).  complaint    alleged   that   the   words 

1  At    common    law   the   truth    of  were  false,  the  general  denial  ought 

the  words  could  not  be  shown  in  to  put  that  allegation  in  issue. 


566  The  Answer.  [Chap.  V. 

NICHOLS  V.  WINFREY. 

Supreme  Court  of  Missouri,  1883.     79  Mo.  544. 

Phillips,  C.  :  This  action  was  hegim  by  Josephine  Steinbeck, 
as  tlie  widow  of  James  Steinbeck,  deceased,  for  the  malicious, 
wrongful,  and  unjustifiable  killing  of  her  said  husband  in  Chari- 
ton county  on  the  17th  day  of  July,  1876.  The  plaintiff  has 
since  intermarried  with  W.  H.  Nichols.  The  answer  contained 
a  general  denial,  and  then  pleaded  that  the  killing  was  done  in 
the  necessary  defense  of  defendant's  person,  and  in  the  defense 
of  his  house,  then  occupied  by  defendant,  after  being  assaulted 
therein  by  deceased.  The  venue  of  the  cause  was  transferred,  at 
plaintiff's  instance,  to  Livingston  county,  where,  on  trial  before 
a  jury,  the  plaintiff  recovered  judgment  for  $2,500,  from  which 
the  defendant  has  appealed  to  this  court.  The  controlling  fea- 
tures of  the  evidence,  as  also  the  instructions  to  be  reviewed  will 
appear  in  their  proper  connection  in  the  course  of  this  opinion. 
*     *     * 

The  defendant  complains  of  the  fourth  instruction  conceded 
to  the  plaintiff,  in  which  the  jury  were  told  "that  before  they 
can  find  for  the  defendant  on  the  ground  of  self-defense,  it 
devolves  upon  him  to  establish,  by  a  preponderance  of  the 
testimony,  that,  at  the  time  he  shot  and  killed  Steinbeck,  Win- 
frey had  reasonable  cause  to  apprehend  a  design  on  the  part 
of  Steinbeck  to  do  him  some  great  personal  injury,  and  had 
also  reasonable  cause  to  apprehend  immediate  danger  of  such 
design  being  accomplished." 

It  is  unnecessary  to  the  decision  of  the  propriety  of  this  in- 
struction, as  applied  to  the  facts  of  this  case,  to  pass  on  the  ques- 
tion as  to  whether  the  burden  of  proof  in  this  character  of  action 
rests  throughout  and  to  the  same  extent  on  the  plaintiff,  as  it 
does  on  the  prosecution  in  a  criminal  case.  It  may  be  affirmed 
that  the  prosecutor,  under  the  statute  for  the  recovery  of  dam- 
ages, is  not  held  to  the  establishment  of  the  defendant's  guilt 
beyond  a  reasonable  doubt.  He  is  only  required  to  make  out 
his  case  by  a  preponderance  of  the  evidence  to  the  satisfaction 
of  the  jury.  ' 

The  allegation  of  the  petition  is  that  the  defendant,  "with 
force  and  arms,  violently,  maliciously,  unlawfully,  and  wrong- 
fully, without  any  just  cause,  did  shoot  the  said  James  Stein- 


Sec.  2.] 


New  Matter. 


567 


beck."  The  answer  denied  generally  the  allegations  of  the  peti- 
tion, and  then  in  the  form  of  new  matter  pleaded  that  the  act 
was  done  in  self-defense  and  in  defense  of  defendant's  house,  in 
which  he  was  unjustifiably  being  assaulted  by  the  deceased. 
This  apparently  new  matter,  however,  was  in  legal  effect  em- 
braced in  the  general  denial,  and  would  have  been  admissible  in 
evidence  thereunder.  These  matters,  too,  were  covered  by  the 
averments  of  the  petition.  To  maintain  the  issues  on  the  plain- 
tiff's part  she  could  not  have  stopped  in  her  evidence  by  merely 
proving  that  defendant  shot  and  killed  her  husband ;  for  by  the 
terms  of  the  statute^  under  which  she  sought  to  recover,  the 
killing  must  have  been  wrongful,  and  the  allegations  of  the 
petition  were  that  the  killing  w^as  malicious,  wrongful,  and  with- 
out just  cause.*    *    ♦    * 

Judgment  reversed. 


8  "Whenever  the  death  of  any 
person  shall  be  caused  by  the 
wrongful  act,  neglect  or  default  of 
another,  and  the  act,  neglect  or 
default  is  such  as  would,  if  death 
had  not  ensued,  have  entitled  the 
party  injured  to  maintain  an  ac- 
tion and  recover  damages  in  re- 
spect thereof,  then,  and  in  every 
such  case,  the  person  who,  or  the 
corporation  which,  would  have 
been  liable  if  death  had  not  en- 
sued, shall  be  liable  to  an  action 
for  damages,  notwithstanding  the 
death  of  the  person  injured."  Mo. 
B.  S.  1879,  sec.  2122.  Another  sec- 
tion gives  the  right  of  action  to 
the  husband  or  wife  of  the  de- 
ceased  person. 

4  Compare  Thayer,  J.,  in  Konigs- 
berger  v.  Harvey,  12  Or.  256, 
(1885):  »  »  •  "The  answer, 
in  legal  effect,  merely  controverts 
the  assault  and  beating  without 
cause  and  provocation,  or  with  in- 
tent to  injure,  hurt,  and  damage 
the  plaintiff.  Strictly  construed, 
it  tendered  no  issue  to  the  cause 
of  action  alleged  in  the  complaint. 
It  admits  really  that  the  respond- 


ent beat  the  appellant,  but  denies 
that  it  was  without  cause  or  prov- 
ocation, or  with  intent  to  injure, 
etc.  The  respondent's  attorneys 
very  probably  supposed  that  by 
denying  the  wrong  they  would  be 
admitted  to  justify  the  act.  But 
parties  cannot  justify  in  that  way. 
It  does  not  present  the  facts  upon 
which  justification  is  claimed — does 
not  show  why  the  beating  was  not 
wrongful.  The  facts  must  be  averred 
in  such  cases  constituting  the 
justification,  and  in  such  a  manner 
that  the  court  can  judge  that  the 
party  was  not  in  the  wrong.  The 
party's  assertion  that  the  act  was 
not  wrongful  is  no  fact;  and  that 
is  all  the  denial  amounts  to.  They 
doubtless  fell  into  the  error  in 
consequence  of  a  misapprehension 
of  the  effect  of  the  adoption  of  the 
Civil  Code,  It  is  too  often  re- 
garded as  an  original  system  of 
practice  and  pleadings,  when  in 
fact  it  is  more  a  change  of  the 
form  of  an  existing  system. 

The  case  at  bar  may  serve  as  an 
illustration.  The  appellant  alleges 
that  the  respondent  assaulted  and 


568  The  Answer.  [Chap.  V. 

CUNNINGHAM  v.  LYNESS. 

Supreme  Court  of  Wisconsin,  1867.     22  Wis.  245. 

Action  to  recover  damages  for  injuries  to  the  plaintiff  from 
being  forced  from  a  pier  into  the  Fox  river  at  the  city  of  Osh- 
kosh,  in  consequence,  as  is  averred,  of  defendant's  negligence 
while  driving  a  wagon  from  the  ferry-boat  on  to  the  pier. 
Answer,  a  general  denial,  with  notice  that  defendant  would  show 
that  the  injury  was  caused  by  the  negligence  of  one  Coughran, 
the  improper  construction  of  the  pier,  and  the  improper  manage- 
ment of  the  ferry-boat.  The  facts  proven  and  the  instructions 
given  and  refused  by  the  court,  will  sufficiently  appear  from 
the  opinion.  Verdict  for  the  plaintiff;  new  trial  denied;  and 
judgment  on  the  verdict ;  from  which  the  defendant  appealed. 

Cole,  J. — On  the  trial,  the  court  was  requested  on  behalf  of 
the  defendant  to  instruct  the  jury,  that  if  they  should  find  from 
the  evidence  that  the  defendant  did  not  use  the  ordinary  care 
and  diligence,  still  if  they  found  that  the  plaintiff,  Mrs.  Cun- 
ningham, in  occupying  the  position  she  did  upon  the  wharf, 
was  guilty  of  negligence,  and  that  such  negligence  on  her  part 
essentially  contributed  to  the  injury,  then  they  must  find  for 
the  defendant.     This  instruction  the  court  refused  to  give,  and 

beat  him;  the  respondent  claims  great  precision.  The  Code  has  dis- 
that  what  he  did  was  in  attempt-  pensed  with  a  good  deal  of  the 
ing  to  repel  an  assault  made  by  formality,  but  requires  the  facts 
the  appellant.  He  is  not  able,  which  constitute  the  defense  to  be 
truthfully,  to  deny  that  he  did  set  forth  in  the  form  of  an  answer, 
beat  and  strike  the  appellant,  but  under  the  head  of  new  matter.  It 
claims  to  be  able  to  prove  that  is  new,  because  it  is  not  embraced 
the  appellant  made  the  first  as-  in  the  statement  of  facts  made  by 
sault,  and  that  he  only  acted  in  the  appeUant  in  his  complaint, 
self-defense.  The  law  upon  that  (Pom.  Eem.  §  691)  The  reason  why 
subject  is  the  same  as  it  was  500  the  facts  constituting  such  a  de- 
years  ago.  The  right  of  self-de-  fense  are  required  to  be  set  forth 
fense  is  a  natural  right,  inherent  in  some  form  is  the  same  now  as 
in  mankind,  though  the  mode  of  it  was  when  pleadings  were  first 
presenting  the  defense  has  been  devised.  It  is  in  order  to  apprise 
changed  somewhat.  Under  the  the  opposite  party  of  what  he  must 
practice  that  formerly  prevailed,  be  prepared  to  confront,  so  that  he 
it  would  have  been  presented  by  will  not  be  taken  by  suprise." 
a  plea  of  son  assault  demesne,  in  *  •  *  See  also  Barr  v.  Post, 
which  the  facts  would  have  been  56  Neb.  698,  (1898). 
■    stated    with    much    formality    and 


Sec.  2.]  New  Matter,  569 

to  the  refusal  an  exception  was  taken.  It  seems,  to  us  that  the 
instruction  was  correct  in  terms  as  asked,  and  was  strictly  per- 
tinent to  the  issue  in  the  case.    *    *    * 

But  it  is  further  insisted  that  the  plaintiffs  were  entitled  to 
recover  in  the  action,  because  the  defense  set  up  in  the  answer 
and  attempted  to  be  proved,  excluded  all  pretense  of  Jiegligence 
on  the  part  of  Mrs.  Cunningham.  It  is  true  that  it  is  stated 
in  the  answer,  by  way  of  notice,  that  the  injury  to  Sirs.  Cun- 
ningham was  produced  by  other  causes ;  such  as  the  want  of 
care  on  the  part  of  Coughran;  defect  in  the  ferry  landing;  and 
carelessness  on  the  part  of  the  employees  of  the  city  in  the  man- 
agement of  the  ferry.  But  there  is  lilcewise  the  general  denial, 
which  put  in  issue  the  right  of  the  plaintiff  to  recover.  It  was 
not  necessary  to  state  in  the  answer  that  the  injury  was  caused 
by  the  negligence  of  Mrs.  Cunningham,  or  by  both  her  negli- 
gence and  that  of  the  defendant ;  since  this  would  merely  amount 
to  the  general  issue.  Potter,  Adm'r,  etc.  v.  The  Chicago  & 
Northwestern  R.  R.  Co.,  20  Wis.  533.5  if^  therefore,  there  was 
any  fact  or  circumstance  which  tended  to  show  that  the  injury 
arose  partly  by  the  negligence  of  Mrs.  Cunningham,  the  de- 
fendant was  entitled  to  proper  instructions  in  view  of  any  such 
evidence.  For  that  fact,  if  established  to  the  satisfaction  of  the 
jury,  would  be  an  answer  to  the  action.  So,  notwithstanding 
the  unnecessary  matter  stated  in  the  answer,  one  of  the  issues 
was,  whether  the  plaintiff,  Mrs.  Cunningham,  by  her  careless- 
ness and  improper  conduct,  contributed  to  the  injury  or  not.^ 

5  Ante,  p.  342.  especially     dissenting     opinion     of 

6  Ace.     Harper   v.    Holcomb,    146      Marshall,  J. 

Wis.  183,  (1911);  Wieland  v.  D.  &  The  Federal  courts  follow  the  Su- 

H.  Canal  Co.  167  N.  Y.  19,  (1901),  preme  Court  of  the  United   States 

semble.     But  see   sec.   841b,  N.   Y.  in  placing  the  burden  of  proof  on 

Code  Civ.  Proc.  requiring  contribu-  the   defendant,   but    allow   the    de- 

tory  negligence  to  be  pleaded  and  fence  under  a  general  denial  where 

proved  by  the  defendant  in  actions  that    is    sanctioned    by    the    state 

under  the   death   statute.     A  num-  practice,    By.    Co.    v.    Darnell,   221 

ber    of    Wisconsin    cases    seem    to  Fed.   191,    (1915).      In   England   it 

place  the  burden  of  proof  on  the  ai)pears  to  have  been  assumed  that 

defendant,   but   whether   it   is   the  in  an  action  on  the  case  for  negli- 

shifting  burden   of  producing   evi-  gence,  the  plaintiff's  case  consisted 

dence    or    the    ultimate    burden    of  of   two    propositions:      1,    that    he 

convincing  is  not  clear,  Sweetman  was  injured  as  a  result  of  defend- 

V.  Green  Bay,  147  Wis.  586,  (1911),  ant's   negligence;    2,    that    he    was 


570  The  Answer.  [Chap.  Y. 

We  are,  therefore,  of  the  opinion  that  there  must  be  a  new  trial. 

Judgment  reversed. 


HUDSON  V.  WABASH  RY.  CO. 

Supreme  Court  of  Missouri,  1890.     101  Mo.  13. 

This  was  an  action  for  damages  for  personal  injuries  resulting 
from  the  alleged  negligence  of  the  defendant.  There  was  a 
verdict  and  judgment  for  the  plaintiff,  from  which  the  defendant 
appealed.'' 

Sherwood,  J.    *    *    • 

The  petition,  after  certain  recitals  as  to  the  defendant  being 
a  railroad  corporation,  sets  forth  certain  ordinances  of  the  city, 
then  states:  *  *  *  That  by  reason  of  said  careless  and  neg- 
ligent acts  of  defendant,  the  plaintiff,  without  any  fault  on  his 
part,  was  caught  between  two  of  said  cars,  then  and  there,  and 
had  his  foot  smashed,  torn  and  broken,  so  that  he  has  since  then 
been  unable  to  work,  to  his  loss  and  damage.     *     *     * 

The  answer  was  as  follows: 

Defendant  denies  each  and  every  other  allegation  contained 

and  set  forth  in  plaintiff's  said  petition.     Wherefore,  having 

fully  answered,  defendant  prays  to  be  discharged  with  its  costs.  " 
*    *    * 

It  is  the  unquestioned  law  of  this  state  that  contributory  neg- 
ligence is  strictly  an  affirmative  defense;  and,  in  order  to  avail 
a  defendant  as  a  matter  of  pleading,  it  must  be  affirmatively 

free  from  contributory  fault.  defendant,  the  accident  was  caused 

Brett,   M.  R.,  in  Wakelin  v.   L.  solely    by    the    negligence    of    the 

&  S.  W.  Ry.  Co.,  55  L.  T.  R.  709,  defendant,    without    any    contribu- 

(]886):      *      *     *      "According  to  tory   negligence."      In    the    House 

the  English  law  the  cause  of  action  of  Lords  the  case  went  off  on  an- 

in   such   a   case   was    not   that   the  other  point,  but  considerable  doubt 

accident  was  caused  by  the  negli-  was  thrown  on  this  view,  Wakelin 

gence  of  the  defendant,  for  if  the  v.   L.   &   S.   W.   Ry.   Co.,   12   A.   C. 

plaintiff  was  guilty  of  contributory  41. 

negligence,  there  was  no  cause  of  7  Statement   condensed   and   part 

action.      The   cause   of   action   was  of  opinion  omitted, 
that,  as  between  the  plaintiff  and 


Sec.  2.] 


New  Matter. 


571 


pleaded.^  0 'Conner  v.  Railroad,  94  Mo.  155,  and  eas.  cit. ;  Don- 
ovan V.  Railroad,  89  Mo.  147 ;  Schlereth  v.  Railroad,  96  Mo.  509. 
The  contention  is,  however,  made  by  the  defendant  that  as  the 
petition  amongst  other  things  alleged  concerning  plaintiH:',  "that 
by  said  negligent  acts,  and  without  any  fault  on  his  part,  he  was 
then  and  there  caught  between  two  of  said  cars,"  etc.,  and  the 
answer  denied  this  avennent,  that  therefore  the  defense  of  con- 
tributory negligence  was  raised.  This  is  a  mistake.  True,  the 
case  of  Karle  v.  Railroad,  55  Mo.  482,  apparently  supports  this 
contention,  but  the  utterance  there  was  only  obiter  and  sliould 
not  be  regarded  as  possessing  any  authoritative  value. 

Besides,  under  our  rulings,  there  was  no  manner  of  neces- 
sity for  the  petition  to  contain  the  allegations  that  the  injuries 
were  done  to  plaintiff  "without  any  fault  on  his  part."  This 
follows  as  a  corollary  from  the  necessity  of  the  defendant  setting 
forth  such  a  defense  in  his  answer;  the  rule  of  the  code  being 
that  "the  defendant,  by  merely  answering  the  allegation  in  the 
plaintiff's  petition,  can  try  only  such  questions  of  fact  as  are 
necessary  to  sustain  plaintiff's  case.®    If  he  intends  to  rely  upon 


8  Walker,  J.,  in  K.  C.  E.  R.  Co. 
V.  Crocker,  95  Ala.  412,  (1891): 
"The  term  'contributory  negli- 
gence', instead  of  implying  such  a 
denial  of  the  material  allegations 
of  the  complaint  as  is  made  by 
pleading  the  general  issue,  implies, 
just  the  contrary.  The  theory  of 
this  special  defense  is,  that  the 
defendant  was  negligent,  but  that 
the  negligence  of  the  plaintiff  con- 
duced to  the  injury  complained  of. 
The  defense  is  in  the  nature  of  a 
confession  and  avoidance.  It  may 
be  fully  made  out  without  denying 
a  single  allegation  of  the  com- 
plaint. The  pith  of  it  is,  that 
admitting  that  the  defendant  was 
negligent  as  charged,  yet  the  plain- 
tiff is  not  entitled  to  recover  be- 
cause his  own  negligence  proxi- 
mately contributed  to  the  injury. 
The  plea  of  contributory  negli- 
gence, when  standing  by  itself,  ad- 
mits the  negligence  charged  in  the 


complaint.  L.  &  N.  R.  R.  Co.  v. 
Hall,  87  Ala.  708;  Carter  v.  Cham- 
bers, 79  Ala.  229;  Geo.  Pac,  Rail- 
way Co.  V.  Lee,  92  Ala.  270.  Now, 
the  very  essence  of  the  general  is- 
sue is  a  denial  of  all  the  material 
allegations  of  the  complaint.  When 
negligence  is  counted  on,  the  fact 
of  negligence  is  certainly  denied 
by  the  general  issue.  The  same 
words  can  not  at  once  be  a  denial 
and  an  admission  of  the  same 
thing.  The  statutory  general  issue 
docs  not  palter  in  a  double  sense." 

9  It  has  been  held  in  a  number 
of  cases  that  a  plea  to  the  effect 
that  the  injury  was  caused  by  the 
plaintiff's  own  negligence,  does  not 
amount  to  a  plea  of  contributory 
negligence,  but  is  a  mere  argumen- 
tative denial.  Birsch  v.  Electric 
Co.,  93  Pae.  940,  (Mont.  1908). 
Vallaint,  J.,  in  Allen  v.  Transit 
Co.,  183  Mo.  411,  (1904):      *     *     » 

"If  the  facts  stated  in  the  plea 


572  The  Answer.  [Chap.  V. 

new  matter  which  goes  to  defeat  or  avoid  the  plaintiff's  action, 
he  must  set  forth  in  clear  and  precise  terms  each  substantive 
fact  intended  to  be  so  relied  on.  It  follows  that  whenever  a 
defendant  intends  to  rest  his  defense  upon  any  fact  which  is  not 
included  in  the  allegations  necessary  to  the  support  of  the  plain- 
tiff's case,  he  must  set  it  out  according  to  the  statute  in  ordinary 
and  concise  language,  else  he  will  be  precluded  from  giving  evi- 
dence of  it  upon  the  trial."  Northrup  v.  Ins.  Co.,  47  Mo.  444. 
That  case  was  cited  and  approved  in  Kersey  v.  Garton,  77  Mo. 
645.    *    *    * 

But  while  contributory  negligence  as  a  matter  of  defense  has 
to  be  pleaded  in  order  for  a  defendant  to  avail  himself  of  it, 
by  the  introduction  of  evidence  to  sustain  that  issue,  yet  it  does 
not  thence  follow  that  if  the  plaintiff's  own  testimony  shows 
circumstances  of  contributory  negligence  which  absolutely  de- 
feat his  right  of  action  and  disprove  his  own  case,  that  the  de- 
fendant is  not  at  liberty  to  take  advantage  of  such  testimony 
though  produced  by  the  adversary.  On  the  contrary,  it  is  well 
settled  in  this  state,  as  well  as  elsewhere,  that  such  advantage 
may  be  taken  of  the  plaintiff's  testimony,  regardless  of  v/hether 
the  special  defense  be  pleaded  or  not.^°  Milburn  v.  Railroad,  86 
Mo.  104,  and  cases  cited;  Schlereth  v.  Railroad,  96  Mo.  509. 
#    *    « 

Judgment  reversed.^ 

only   go   to    show   that   it   was   the  temporaneous  facts  pleaded  in  the 

plaintiff 's  own  negligence  and  noth-  answer." 

ing  more  that  caused  the  accident  10  For  another  variation,  see  Hill 

those  facts  could  be  proven  under  v.    Minneapolis    St.    Ey.    Co.,    112 

the    general    denial,   because    if    it  Minn.    503,    (1910),    to    the    effect 

was  the  plaintiff's  negligence  only,  that   contributory  negligence  must 

it  was  in  no  part  defendant's  neg-  be  specially  pleaded  by  the  defend- 

ligence.      Under    a    general    denial  ant  unless  the  complaint  negatives 

the  defendant  may  prove  any  fact  it. 

which     shows     that     the     plaintiff  1  The  judgment  was  reversed  on 

never  had  any  cause  of  action.   But  the  ground  that  the  verdict  should 

where  an  affirmative  defense  is  of-  have   been   directed   for   defendant 

fered  it   logically  carries  the  idea  on   the   plaintiff's   evidence   estab- 

that  a  cause  of  action  once  existed,  lishing  contributory  negligence, 

but  has  ceased  because  of  the  facts  The  rule  that  a  verdict  may  be 

pleaded   in   the    answer   or   that    a  directed   for  the   defendant   on   an 

cause  of  action  would  have  arisen  unpleaded    defense    clearly    proved 

out    of    the    facts    set    out    in    the  by  the  plaintiff's  own  evidence  is 

petition  but  for  the  additional  con-  well  settled  in  Missouri,  and  in  a 


Sec.  2.]  New  Matter.  573 

KAMINSKI  V.  TUDOR  IRON  WORKS. 

Supreme  Court  of  Missouri,  1901.     167  Mo.  462. 

Robinson,  J. — This  is  a  suit  by  plaintiff  to  recover  damages 
for  the  loss  of  a  thumb  alleged  to  have  been  caused  by  the  negli- 
gence of  defendants.  The  negligence  charged  in  plaintiff's 
petition  is  twofold:  first,  the  failure  of  defendant  to  provide  a 
reasonably  safe  appliance  with  which  to  do  the  work  he  and 
others  engaged  with  him  were  required  to  perform,  in  this,  that 
the  derrick  or  hoisting  machine  (at  which  he  and  his  co-laborers 
were  working)  was  not  furnished  with  a  brake-dog  to  arrest 
or  stay  the  load  that  was  placed  upon  its  arms  or  crane,  while 
being  hoisted  or  lowered  by  use  of  the  machine ;  and,  secondly, 
because  of  the  failure  of  defendant  to  furnish  a  sufficient  num- 
ber of  men  to  operate  the  derrick  when  so  heavily  loaded,  as 
upon  the  occasion  of  plaintiff's  injury.  The  answer  is  a  general 
denial  with  a  plea  of  contributory  negligence  on  the  part  of 
the  plaintiff.  The  case  was  tried  by  a  jury  under  instructions 
from  the  court,  and  resulted  in  a  verdict  and  judgment  for 
defendant,  and  plaintiff,  after  the  usual  steps  taken,  has  brought 
the  case  here  for  a  review.     *     *     * 

It  is  furthermore  urged  by  the  appellant  that  the  court  erred 
in  the  giving  of  instruction  numbered  3,  because  the  defendant 
did  not  plead  in  its  answer  as  a  defense  to  plaintiff's  cause  of 
action  that  the  act  of  a  fellow-servant  or  fellow-servants  with 
plaintiff  contributed  to  his  injury;  that  as  defendant  had  not 
raised  that  issue  by  the  pleadings,  it  was  not  entitled  to  have 
the  question  submitted  to  the  jury  by  instruction. 

Plaintiff's  argument,  and  the  citation  of  authorities  offered 
to  sustain  his  position  in  this  regard,  shows  that  he  erroneously 
likens  the  negligence  of  a  fellow-servant  to  contributory  negli- 
gence on  part  of  plaintiff.  In  this  he  is  clearly  wrong.  The 
two  defenses  are  widely  dissimilar.  The  defense  of  "contribu- 
tory negligence"  on  part  of  a  plaintiff,  interposed  by  a  defend- 
ant, is  in  the  nature  of  a  plea  in  confession  and  avoidance,  and 
it  has  been  held  for  that  reason  by  this  court,  it  must  be  specially 
pleaded  by  a  defendant  to  be  availing  to  him.     The  plea  im- 

number   of   the   other   states.     For      Mohawk    Ins.    Co.,    5    Gray,    541, 
the    contrary    view,    see    Mulry    v.       (Mass.  1856). 


574  The  Answer.  [Chap.  V. 

pliedly  admits  some  negligence  on  part  of  the  defendant,  but 
seeks  to  avoid  its  consequence  by  charging  that  plaintiff  himself 
contributed  to  the  injury  complained  of.  It  is  a  matter  pleaded 
by  defendant  to  avoid  the  consequences  of  his  own  act,  and  for 
that  reason,  the  rule  has  been  adopted  that  it  must  be  specially 
pleaded  by  defendant.  Upon  the  other  hand,  the  defense  that 
plaintiff's  injuries  received,  were  caused  by  the  negligence  of 
a  fellow-servant,  does  not  admit  any  negligence  on  the  part  of 
the  defendant,  but  strikes  at  the  very  root  of  plaintiff's  cause 
of  action  and  disposes  of  it  if  true. 

The  averment  of  an  answer,  that  another,  or  others  than 
defendant,  did  the  act  of  which  defendant  is  charged  with  hav- 
ing done  to  the  injury  of  a  plaintiff,  is  nothing  more  than  a 
denial  of  the  averments  of  the  petition,  that  defendant  is  guilty 
of  the  charges  made,  as  the  basis  of  plaintiff's  cause  of  action; 
and  the  rule  has  ever  been  that  anything  may  be  shown  under 
a  general  denial  which  tends  to  prove  that  the  cause  of  action 
stated  never  existed.     (Bliss,  Code  Pleading,  par.  352.) 

The  reason  for  a  special  plea,  as  in  confession  and  avoidance, 
fails  entirely  of  application  in  a  case  where  a  defendant  relies 
upon  the  fact,  as  here,  that  it  did  not  do  the  act  charged,  and 
as  proof  of  that  fact,  shows  that  another,  for  whose  act  defend- 
ant is  not  responsible  to  plaintiff,  did  the  wrong  charged  to 
defendant.^ 

Finding  no  error  in  the  action  of  the  trial  court,  its  judgment 
is  affirmed. 


DUFFY  V.  CONSOLIDATED  COAL  CO. 

Supreme  Court  of  Iowa,  1910.     147  la.  225. 

This  is  an  action  for  personal  injuries.  There  was  a  verdict 
and  judgment  for  the  plaintiff.    Defendant  appeals. 

Evans,  J.    *    *    * 

Appellant  complains  because  the  trial  court  failed  to  instruct 
the  jury  on  the  subject  of  assumption  of  risk.    Appellant  sub- 

2  Ace.  Wilson  v.  Ey.,  51  S.  C.  79,  Shasta  Spring  Co.,  135  Cal.  141, 
(1897)      Contra:      Laying    v.    Mt.      (1901). 


Sec.  2.]  New  Matter.  575 

mitted  to  the  trial  court  three  instructions  on  the  subject,  which 
the  trial  court  refused.  The  first  of  these  requested  instructions 
laid  upon  the  plaintiff  the  burden  of  proving  that  he  did  not 
assume  the  risk  involved  in  passing  through  the  entry  at  the 
place  of  injury.  This  was  clearly  erroneous  as  an  abstract  prop- 
osition. Assumption  of  risk  is  an  affirmative  defense,  and  tlie 
burden  is  upon  the  defendant  to  plead  it  and  prove  it. 

Assuming  that  the  other  two  instructions  asked  on  the  sub- 
ject were  correct  as  abstract  propositions  of  law,  they  were 
properly  refused  because  the  defendant  had  not  pleaded  such 
defense.  The  only  reference  to  the  subject  contained  in  its  an- 
swer is  the  following:  "Defendant  further  states  that  whatever 
injuries  if  any,  the  plaintiff  received  were  such  as  he  assumed 
the  risk  of  in  his  employment  by  the  company."  The  term 
"assumption  of  risk"  has  come  to  be  used  in  a  twofold  sense. 
It  is  often  said  that  an  employee  assumes  the  ordinary  risk  that 
is  incident  to  his  employment.  This  form  of  assumption  of 
risk  is  often  pleaded  by  defendants  in  personal  injury  cases, 
although  it  is  quite  unnecessary  to  do  so.  Assumption  of  risk 
in  its  true  sense  has  reference  to  those  risks  arising  out  of  the 
negligence  of  the  master  when  such  negligence  is  known  to  the 
employee,  and  the  danger  therefrom  appreciated  by  him.  In  the 
first  form  herein  indicated  a  specific  pleading  of  assumption  of 
risk  of  the  ordinary  dangers  incident  to  an  employment  is  a 
mere  amplification  of  the  general  denial,'  and  adds  nothing  to 
it  in  a  legal  sense.  In  the  second  form  herein  indicated  it  is 
an  affirmative  defense,  and  must  be  specially  pleaded  as  such. 
Sankey  v.  R.  R.  Co.,  118  Iowa  39 ;  Mace  v.  Boedker,  127  Iowa 
731 ;  Martin  v.  Light  Co.,  131  Iowa  734 ;  Beresford  v.  Coal  Co., 
124  Iowa  39.  The  most  that  can  be  said  of  defendant's  plead- 
ing in  this  respect  is  that  it  sets  up  an  assumption  of  risk  in 
the  first  form.  There  is  no  suggestion  in  it  that  plaintiff  knew 
the  defect  complained  of,  or  that  he  ought  to  have  known  it, 

3  Valliant,    J.,   in   Curtis    v.    Mc-  der  his  plea  of  general  denial,  be- 

Nair,  173  Mo.  270,  (1902).     »     *     *  cause  in   so    showing  he   disproves 

"If  the  plaintiff's  suffering  was  the  allegation  of  negligence  on  his 

solely  from  a  risk  incident  to  the  part.     A  special  plea  that  plaintiff 

business,  he  cannot  recover  because  assumed    such    a    risk    is    unneces- 

it  was  a  risk  he  assumed  when  he  sary. "     *     *     »     And  so  in  Evans 

undertook    the     service,    and    this  liauudry  Co.  v.  Crawford,  67  Neb. 

fact  the  defendant  may  show  un-  153    (1903). 


576 


The  Answer. 


[Chap.  V. 


nor  any  suggestion  that  he  knew,  or  ought  to  have  known,  of 
the  danger  arising  therefrom.  The  trial  court  therefore  prop- 
erly refused  to  submit  the  issue  to  the  jury.    *    *    * 

Judgment  affirmed. 


III.    By  Way  of  Equitable  Defense} 
DORR  V.  MUNSELL. 


Supreme  Court  of  New  York,  1816.     13  Johnson  430. 

This  was  an  action  of  debt  on  a  bond  in  the  penalty  of  400 
dollars,  dated  the  21st  September,  1810.  The  defendant  craved 
oyer,  and  set  forth  the  condition  of  the  bond,  which  was  for 
the  payment  of  three  sums,  each  of  66  dollars  and  67  cents,  in 


1  The  English  Common  Law  Pro- 
cedure Act  of  1854,  made  the  fol- 
lowing provision  for  equitable  de- 
fenses: §  83  "It  shall  be  lawful 
for  the  defendant  or  plaintiff  in 
replevin  in  any  cause  in  any  of 
the  superior  courts  in  which  if 
judgment  were  obtained,  he  would 
be  entitled  to  relief  against  such 
judgment  on  equitable  grounds  to 
plead  the  facts  which  entitle  him 
to  such  relief  by  way  of  defence, 
and  the  said  courts  are  hereby 
empowered  to  receive  such  defence 
by  way  of  plea,  provided  that  such 
plea  shall  begin  with  the  words 
'for  defence  on  equitable  grounds', 
or  words  to  the  like  effect." 

By  the  Act  of  March  3,  1915, 
Congress  made  the  following  provi- 
sion on  the  subject:  Jud.  Code,  § 
274b.  "That  in  all  actions  at  law 
equitable  defenses  may  be  inter- 
posed by  answer,  plea,  or  replica- 
tion without  the  necessity  of  filing 
a  bill  on  the  equity  side  of  the 
court.  The  defendant  shall  have 
the  same  rights  in  such  case  as  if 


he  had  filed  a  bill  embodying  the 
defense  of  seeking  the  relief  prayed 
for  in  such  answer  or  plea.  Equi- 
table relief  respecting  the  subject 
matter  of  the  suit  may  thus  be  ob- 
tained by  answer  or  plea.  In  case 
affirmative  relief  is  prayed  in  such 
answer  or  plea,  the  plaintiff  shall 
file  a  replication.  Eeview  of  the 
judgment  or  decree  entered  in  such 
case  shall  be  regulated  by  rule  of 
court.  Whether  such  review  be 
sought  by  writ  of  error  or  by  ap- 
peal the  appellate  court  shall  have 
full  power  to  render  such  judgment 
upon  the  records  as  law  and  jus- 
tice shall  require." 

Somewhat  similar  statutes  are 
found  in  a  number  of  the  common 
law  states,  e.  g.  Maine,  Massachu- 
setts  and  Maryland. 

The  only  provision  in  the  New 
York  Code  on  the  subject  of  equi- 
table defences  is  that  permitting 
the  defendant  to  set  up  as  many 
defences  as  he  has  whether  for- 
merly denominated  legal  or  equita- 
ble,  §  507,  ante  p.  470. 


Sec.  2.]  New  Matter.  577 

one,  two,  and  three  years  from  the  date ;  and  then  pleaded, 
1.  Non  est  factum.  2.  That  the  bond  was  fraudulently  ob- 
tained by  the  plaintiff,  by  representing  himself  to  be  the  original 
inventor  and  patentee  of  an  improvement  in  a  machine  for 
shearing  cloth,  containing  a  new  mode  and  principle  of  drawing 
and  moving  the  cloth  in  the  machine  while  in  the  operation  of 
being  sheared ;  and  that  the  same  had  not  been  invented  hy,  or 
patented  to,  any  other  person,  previous  to  the  date  of  the  letters 
patent  granted  to  the  plaintiff  by  the  president  of  the  United 
States.  The  defendant  then  averred  that  the  said  mode  of  draw- 
ing cloth,  while  in  the  operation  of  being  sheared,  was  patented 
on  the  22d  November,  1805,  to  one  Kellogg,  and  to  one  Samuel 
G.  Dorr,  on  the  29th  October,  1792 ;  and  that  the  defendant  was 
not  the  original  inventor  and  patentee  thereof.  That  the  de- 
fendant, in  confidence  of  the  representations  of  the  plaintiff, 
made  the  bond  in  the  declaration  mentioned,  and  received  tliore- 
for,  from  the  plaintiff,  a  conveyance  of  his  right  to  make  and 
use  the  said  machine  for  14  years,  in  the  county  of  Cayuga,  and 
the  township  of  ]\Iarcellus,  in  the  county  of  Onondaga,  excepting 
the  town  of  Aurelius,  in  the  county  of  Cayuga.  3.  Generally 
that  the  bond  was  obtained  by  fraud. 

To  the  second  plea  the  plaintiff  demurred,  and  assigned  spe- 
cial causes  of  demurrer,  which  it  is  unnecessary  to  state,  as  the 
opinion  of  the  Court  was  founded  on  the  insufficiency  of  the  plea 
in  substance;  and,  to  the  third  plea,  he  replied  tendering  an 
issue  thereon.  The  case  was  submitted  to  the  Court  without 
argument. 

Spencer,  J.,  delivered  the  opinion  of  the  Court.  The  plea 
demurred  to  is  bad.  It  sets  up  a  fraudulent  representation  of 
the  plaintiff's  patent  right;  and,  in  substance,  it  is  a  denial  of 
any  consideration  for  the  bond.  At  law,  the  defendant  cannot 
avoid  a  solemn  deed  on  the  ground  of  a  want  of  consideration. 
That  inquiry  is  precluded  by  the  very  nature  of  the  instrument. 
The  case  of  Vroman  v.  Phelps,  (2  Johns.  Rep.  177)  is  directly 
in  point,  that  a  fraudulent  representation  of  the  quality  and 
value  of  the  thing  sold  forms  no  defense  in  a  suit  on  a  specialty. 

In  some  of  the  elementary  writers,  it  is  stated  that  fraud  may 
be  given  in  evidence  under  the  plea  of  non  est  factum.  This 
must  be  confined  to  cases  where  the  fraud  relates  to  the  execu- 
tion of  the  instrument,  as  if  a  deed  be  fraudulently  misread, 
and  is  executed  under  that  imposition ;   or  where  there  is   a 


578  The  Answer.  [Chap.  V. 

fraudulent  substitution  of  one  deed  for  another,  and  the  party's 
signature  is  obtained  to  a  deed  which  he  did  not  intend  to  ex- 
ecute.''   #     #     « 

Judgment  for  plaintiff. 


FORD  V.  DOUGLAS. 
Supreme  Court  of  United  States,  1846.     5  Howard  143. 

Mr.  Justice  Nelson  delivered  the  opinion  of  the  court: 

This  is  an  appeal  from  a  decree  of  the  Circuit  Court  of  the 
United  States,  held  in  and  for  the  Eastern  District  of  the  State 
of  Louisiana. 

The  complainants  below,  the  appellees  here,  filed  their  bill 
against  Christopher  Ford,  the  appellant,  and  Robertson,  the 
marshal  of  the  district,  for  the  purpose  of  obtaining  injunctions 
to  stay  proceedings  upon  the  several  judgments  and  executions, 
which  Ford  had  recovered  in  the  Circuit  Court  of  the  United 
States  against  one  Stephen  Douglas,  as  executor  of  J.  S, 
Douglas,  deceased. 

The  judgments  amounted  to  some  $18,000,  and  the  marshal 
had  levied  upon  two  plantations,  and  the  slaves  thereon,  of 
which  the  testator,  J.  S.  Douglas,  had  died  seized  and  possessed. 

The  bill  set  forth  that  Stephen  Douglas,  against  whom  the 
judgments  had  been  recovered,  neither  in  his  own  right  nor  as 
executor  of  J.  S.  Douglas,  deceased,  had  any  title  to  or  interest 
in  the  plantations  and  slaves  which  had  been  seized  under  and 
by  virtue  of  the  said  executions;  and  that  the  same  formed  no 
part  or  portion  of  the  succession  in  the  hands  of  said  executors 
to  be  administered.  But  that  the  whole  of  the  said  plantation 
and  slaves,  including  the  crops  of  cotton  and  all  other  things 
thereon,  were  the  true  and  lawful  property  of  the  complainants ; 
that  they  were  in  the  lawful  possession  of  the  same,  and  had  been 
for  a  long  time  before  the  issuing  of  the  executions  and  seizure 
complained  of ;  and  had  acquired  the  said  property,  and  the  title 
thereto,  at  a  probate  sale  of  all  the  property  belonging  to  the 

8  For    an    interesting    discussion       Courts,"  by  Edwin  H.  Abbott,  Jr., 
of  this  problem,  see  "Fraud   as  a       15  Columbia  Law  Review,  489. 
Defense    at    law    in    the    Federal 


Sec.  2.]  New  Matter.  579 

estate  and  succession  of  the  said  testator — which  sale  was  law- 
fully made,  and  vested  in  the  complainants  a  good  and  valid 
title.  All  which  would  appear  by  the  process  verbal  of  the  said 
adjudications,  and  the  mortuary  proceedings  annexed  to  and 
forming  a  part  of  the  bill. 

An  injunction  was  granted,  in  pursuance  of  the  prayer  of  the 
bill,  staying  all  proceedings  on  the  judgments  rendered  in  the 
three  several  suits,  and  also  on  the  executions  issued  thereon 
against  the  property. 

Christopher  Ford,  the  adjudged  creditor,  in  answer  to  the  bill, 
denied  the  validity  of  the  probate  sales  of  the  plantations  and 
slaves  to  the  complainants,  and  charged  that  the}^  were  effected, 
and  the  pretended  title  thereto  acquired  by  fraud  and  covin 
between  the  executor,  Stephen  Douglas,  and  the  executrix,  the 
widow  of  the  testator,  and  one  of  the  complainants,  for  the  pur- 
pose of  hindering  and  defrauding  the  creditors  of  the  estate; 
that  in  furtherance  of  this  design,  a  large  amount  of  simulated 
and  fraudulent  claims  of  the  executor  and  executrix  were  pre- 
sented against  the  succession,  to-wit,  $53,000  and  upwards,  in 
favor  of  the  former,  and  $76,000  and  upwards  in  favor  of  tlie 
latter,  which  were  received  and  allowed  by  the  Probate  Court, 
without  any  vouchers  or  legal  evidence  of  the  genuineness  of  the 
debts  against  the  estate;  and  these  simulated  and  fraudulent 
claims  were  made  the  foundation  of  an  application  to  the  said 
Probate  Court  for  an  order  to  sell  the  two  plantations,  and  slaves 
thereon,  under  which  the  widow  and  Archibald  Douglas  became 
the  purchasers  at  the  probate  sale;  that  neither  had  paid  any 
part  of  the  purchase  money  to  the  executor  or  Probate  Court ; 
and  which  was  the  only  title  of  the  complainants  to  the  property 
in  question,  upon  which  the  defendant  had  caused  the  execu- 
tions to  be  levied. 

In  confirmation  of  the  fraud  thus  alleged  in  the  probate  sales 
in  the  parish  of  Madison  and  the  State  of  Louisiana,  the  defend- 
ant further  charges  that  the  testator  died  seized  and  possessed, 
also,  of  a  large  plantation,  and  slaves  and  personal  property 
therein  situate  in  the  County  of  Clairborne  and  State  of  Missis- 
sippi, inventoried  at  upwards  of  $70,000,  besides  notes  and  ac- 
counts to  the  amount  of  $161,000  and  upwards;  that  the  said 
plantations  and  slaves  were,  on  application  of  Stephen  Douglas, 
the  executor,  to  the  Probate  Court  in  that  state,  and  an  order 
for  that  purpose  obtained,  sold  and  purchased  in  by  the  widow 


580  The  Answer.  [Chap.  V. 

and  executrix  for  about  the  sum  of  $40,000,  and  that  the  per- 
sonal estate  of  $161,000  and  upwards,  of  notes  and  accounts, 
were  not,  and  have  not  been,  accounted  for  by  the  executor  to 
the  Court  of  Probate. 

In  short,  accordmg  to  the  answer  of  the  defendant,  the  estate 
and  succession  of  the  deceased  debtor,  inventoried  at  about  the 
sum  of  $300,000,  and  for  auG^ht  that  appears  available  to  that 
amount,  has  been  sold  and  transferred  through  the  instrumen- 
tality and  agency  of  family  connections,  under  color  of  proceed- 
ings apparently  in  due  form  in  the  Probate  Court,  into  the 
hands  of  the  widow  and  a  brother  of  the  deceased,  without  ade- 
quate consideration,  if  consideration  at  all,  and  with  intent  to 
hinder  delay  and  defraud  the  creditors  of  the  estate,  and  par- 
ticularly the  defendant. 

The  complainants  excepted  to  the  answer  filed  by  the  defend- 
ant, because  the  matter  and  doings  set  forth  therein  could  not 
in  law  be  inquired  into  in  the  present  suit,  or  proceedings  insti- 
tuted by  the  said  complainants,  and  prayed  that  they  might  have 
the  benefit  of  their  injunction,  and  that  it  might  be  made  per- 
petual. 

And  thereupon  it  was  agreed  that  the  case  might  be  set  down 
for  argument  on  the  matters  of  law  arising  on  the  bill  and  an- 
swer; and  that  if  the  judgment  of  the  court  in  matters  of  law 
should  be  for  the  defendant,  the  complainants  might  join  issue 
on  the  fact,  and  testimony  be  taken  in  the  usual  manner. 

The  court,  after  argument  of  counsel,  decreed  that  the  excep- 
tion of  the  complainants  to  the  defendant's  answer  was  well 
taken,  and  gave  leave  to  answer  over,  which  was  declined;  and, 
therefore,  the  court  adjudged  and  decreed  that  tlie  injunction 
theretofore  awarded  in  the  case  should  be  made  perpetual ;  and 
it  was  further  adjudged  and  decreed  that  complainants  recover 
the  costs  of  suit,  without  prejudice  to  the  right  of  the  defendant 
to  any  action  he  might  think  proper. 

The  decision  of  the  court  below,  and  the  view  which  we  have 
taken  of  the  case  here,  do  not  involve  the  question  whether  the 
matters  set  forth  in  the  answer  sufficiently  established  the  fact 
that  a  fraud  had  been  conunitted  by  the  complainants  against 
creditors,  in  the  several  sales  and  transfers  of  the  property  in 
question,  through  the  instrumentality  of  the  Probate  Court,  nor, 
as  it  respects  the  effect  of  the  fraud,  if  established,  upon  the  title 
derived  under  these  sales.     If  the  ease  depended  upon  the  de- 


Sec.  2.]  New  Matter.  581 

cision  of  these  questions,  we  entertain  little  doubt  as  to  the  judg- 
ment that  should  be  given. 

The  ground  of  decision  below  and  of  the  argument  here  is 
that  the  complainants  were  not  bound  to  answer  the  allegations 
of  fraud  against  their  title,  in  the  aspect  in  which  the  case  was 
presented  to  the  court ;  that  a  title  derived  under  a  public  sale, 
in  due  form  of  law,  by  the  probate  judge,  protected  them  in  the 
full  and  peaceable  possession  and  enjoyment  of  the  property 
until  the  conveyance  was  vacated  and  set  aside  by  a  direct  pro- 
ceeding instituted  for  that  purpose ;  and  that  this  step,  on  the 
part  of  the  judgment  creditors,  was  essential,  upon  the  estab- 
lished law  of  the  state  of  Louisiana,  before  he  could  subject  the 
property  to  the  satisfaction  of  his  judgment. 

We  have,  accordingly,  looked  into  the  law  of  that  state  on  this 
subject,  and  find  the  principle  contended  for  well-settled  and 
uniformly  applied  by  its  courts  in  cases  like  the  present.  The 
judgment  creditor  is  not  permitted  to  treat  a  conveyance  from 
the  defendant  in  the  judgment  made  by  authentic  act,  or  in  pur- 
suance of  a  judicial  sale  of  the  succession  by  a  probate  judge,  as 
null  and  void,  and  to  seize  and  sell  the  property  which  has  thus 
passed  to  the  vendee.  The  law  requires  that  he  should  bring  an 
action  to  set  the  alienation  aside,  and  succeed  in  the  same,  before 
he  can  levy  his  execution.  And  so  firmly  settled  and  fixed  is  this 
principle  in  the  jurisprudence  of  Louisiana,  as  a  rule  of  prop- 
erty, and  as  administered  in  the  courts  of  that  state,  that  even 
if  the  sale  and  conveyance  by  authentic  act,  or  in  pursuance  of  a 
judicial  sale,  are  confessedly  fraudulent  and  void,  still  no  title 
passes  to  a  purchaser  under  the  judgment  and  execution,  not  a 
creditor  of  the  vendor,  so  as  to  enable  him  to  attack  the  convey- 
ance, and  obtain  possession  of  the  property.  In  effect  the  sale,  if 
permitted  to  take  place,  is  null  and  void,  and  passes  no  title. 
(Henry  v.  Hyde,  5  Martin  [N.  S.]  633 ;  Yocum  v.  Bullitt,  6  Ibid. 
234 ;  Peet  v.  Morgan,  6  Ibid.  137 ;  Childress  v.  Allen,  3  Louisiana 
477 ;  Brunet  v.  Duvergis,  5  Ibid.  124 ;  Samory  v.  Hebrard  et  al. 
17  Ibid.  558.) 

The  case  of  Yocum  v.  Bullitt  et  al.,  among  many  above  re- 
ferred to,  is  like  the  one  before  us. 

The  court  there  says :  ' '  The  record  shows  that  the  slaves  had 
been  conveyed  by  the  defendant  in  the  execution  by  a  sale  under 
the  private  signature  recorded  in  the  office  of  the  parish  judge 
of  St.  Landry,  where  the  sale  was  made.    If  the  sale  was  fraud- 


582  The  Answer,  [Chap.  V. 

nlent  it  must  be  regularly  set  aside  by  a  suit  instituted  for  that 
purpose;  that  it  was  not  less  a  sale  and  binding  upon  third 
parties  until  declared  null  in  an  action  which  the  law  gives 
(Curia  Phil.  Revocatoria,  n.  2)  ;  that  the  possession  of  the 
vendee  was  a  legal  one,  until  avoided  in  due  course  of  law." 
The  court  further  remarked  that  "The  same  point  had  been 
determined  at  the  preceding  term,  in  which  it  had  been  held 
that  a  conveyance  alleged  to  be  fraudulent  could  not  be  tested 
by  the  seizure  of  the  property  or  estate,  belonging  to  the  vendor, 
but  an  action  must  be  brought  to  annul  the  conveyance," 

The  principle  runs  throiigli  all  the  cases  in  the  books  of  reports 
in  that  state,  and  has  its  foundation  in  the  Civil  Code  (art.  1965, 
1973,  1984),  and  in  the  Code  of  Practice  (Sec.  3,  art.  298,  301, 
604,  607),  and  in  Stein  v.  Gibbons  &  Irby  (16  Louisiana  103). 
And  from  the  course  of  decision  on  the  subject,  it  is  to  be  re- 
garded not  merely  as  a  rule  of  practice,  or  mode  of  proceeding  in 
the  enforcement  of  civil  rights,  which  would  not  be  binding  upon 
this  court,  but  as  a  rule  of  property  that  effects  the  title  and 
estate  of  the  vendee,  and  cannot,  therefore,  be  dispensed  with 
witliout  disturbing  one  of  the  securities  upon  which  the  rights  of 
property  depend.  It  gives  strength  and  stability  to  its  posses- 
sion and  enjoyment, 'by  forbidding  the  violation  of  either,  except 
upon  legal  proceedings  properly  instituted  for  the  purpose. 
Neither  can  be  disturbed,  except  by  judgment  of  law.  For  this 
purpose  the  appropriate  action  is  given,  providing  for  the  seces- 
sion of  all  contracts,  as  well  as  for  revoking  all  judgments  when 
founded  in  fraud  of  the  rights  of  creditors. 

In  this  court,  a  bill  filed  on  the  equity  side  is  the  appropriate 
remedy  to  set  aside  the  conveyance.  In  the  present  case  a  cross- 
bill should  have  been  filed,  setting  forth  the  matters  contained 
in  the  answer  of  the  defendant.  The  vendees  would  then  have 
had  an  opportunity  to  answer  the  allegations  of  fraud  charged 
in  the  bill,  and,  if  denied,  the  parties  could  have  gone  to  their 
proofs,  and  the  ease  disposed  of  on  its  merits. 

It  is  said  that  in  some  of  the  Western  States  an  answer  like 
the  one  in  question  would  be  regarded  by  the  courts  in  the 
nature  of  a  cross-bill,  upon  which  to  found  proceedings  for  the 
purpose  of  setting  aside  the  fraudulent  convej^anee.  But  the 
practice  in  this  court  is  otherwise,  and  more  in  conformity  with 
the  established  course  of  proceeding  in  a  court  of  equity. 

"We  are  of  opinion,  therefore,  that  the  appellant  mistook  his 


Sec.  2.]  New  Matter.  583 

rights  in  attempting  to  raise  the  question  of  fraud  in  the  probate 
sales  in  his  answer  to  the  injunction  bill ;  and  that,  instead  there- 
of, he  should  have  filed  a  cross-bill,  and  have  thus  instituted  a 
direct  proceeding  for  the  purpose  of  setting  aside  the  sales  and 
subjecting  the  property  to  his  judgments  and  executions;  and 
that  in  this  respect,  and  to  this  extent,  the  decree  of  the  court 
below  was  correct. 

But  on  looking  into  the  decree,  we  are  apprehensive  that  it  has 
been  carried  further  than  the  assertion  of  the  principle  which 
we  are  disposed  to  uphold,  and  which  may  seriously  embarrass 
the  appellant  in  the  pursuit  of  a  remedy  that  is  yet  clearly  open 
to  him.     *     *     * 

We  shall,  therefore,  reverse  the  decree,  and  remit  the  pro- 
ceedings to  the  court  below,  with  directions  that  all  further  pro- 
ceedings on  the  three  judgments  and  executions  be  stayed,  as 
it  respects  the  property  seized  and  in  question,  but  that  the 
appellant  have  liberty  to  file  a  cross-bill,  and  take  such  further 
proceedings  thereon  as  he  may  be  advised. 

Decree  reversed. 


KIRK  V.  HAMILTON. 
Supreme  Court  of  United  States,  1880.     102  V.  S.  68. 

Error  to  the  Supreme  Court  of  the  District  of  Columbia.^ 
This  was  an  action  of  ejectment,  brought  December  21,  1872,  by 
George  B.  Kirk,  against  Charles  0.  Hamilton  and  Catherine 
Hamilton,  to  recover  parts  of  lots  7  and  9  in  square  437  in  the 
city  of  Washington.  The  defendants  pleaded  not  guilty.  A  ver- 
dict was  returned  in  their  favor,  and,  a  new  trial  having  been 
refused,  judgment  was  entered  on  the  verdict.  Kirk  sued  out 
this  writ. 

The  plaintiff  claimed  title  as  original  owner.  The  defend- 
ants claimed  title  under  a  trustee's  sale  made  under  a  decree  in 

8  The   procedure   in   the   District      the   common   law  basis. 
of  Columbia  was  substantially   on 


584  The  Answer.  [Chap.  V. 

a  judgment  creditor's  action  against  Kirk  and  others.  The  facts 
sufficiently  appear  in  the  opinion.* 

Mr.  Justice  Harlan,  after  stating  the  case,  delivered  the 
opinion  of  the  court. 

It  appears  from  the  first  bill  of  exceptions  that,  upon  the  trial 
of  the  cause,  the  plaintiff,  to  maintain  the  issiie  joined,  gav^e  evi- 
dence to  the  jury  tending  to  prove  title  in  himself  to  the  land  in 
dispute,  as  well  as  his  actual  possession  of  the  premises  under 
that  title ;  that  he  had  fully  discharged  the  indebtedness  secured 
by  the  two  deeds  of  trust  executed,  one  to  Lenox  and  Naylor,  and 
the  other  to  Clarke  and  Smith ;  that  Charles  Stott,  on  the  14th 
of  May,  1872,  reconveyed  to  him  all  that  portion  of  the  premises 
which,  on  the  22nd  of  March,  1856,  he  had  conveyed  to  Stott; 
that  he  had  never  made  nor  authorized  any  other  conveyances 
than  those  just  named.  He  also  introduced  a  deed  from  Car- 
rington,  as  the  supposed  trustee  in  the  case  of  Moore  &  Co.  v. 
Kirk,  etc.,  at  the  same  time,  however,  denying  its  validity,  and 
avowing  that  it  was  introduced  subject  to  his  exceptions  re- 
served, and  to  be  thereafter  presented,  as  to  its  sufficiency  in 
law  to  prove  title  in  the  defendants  or  either  of  them.  It  was 
admitted  by  the  court  subject  to  these  exceptions.  The  plaintiff 
further  gave  evidence  to  prove  that  defendants  were  in  posses- 
sion of  the  premises  at  the  commencement  of  the  action,  and 
then  rested. 

The  bill  of  exceptions  then  shows  that  defendants,  to  sustain 
their  defense,  and  to  prove  title  out  of  the  plaintiff,  offered  to 
read  in  evidence  the  record  of  the  equity  suit  of  Moore  &  Co.  v. 
Kirk,  etc.  Plaintiff  insisted  that  the  record  of  that  suit  was  in- 
sufficient in  law  to  maintain  the  issue  on  the  defendant's  behalf, 
or  to  show  title  in  them,  and  asked  the  court  to  inform  the  jury 
that  it  should  not  then  be  admitted  in  evidence,  except  subject 
to  his  exceptions  as  to  its  sufficiency  in  law,  or  to  be  thereafter 
presented  to  the  court  pending  the  further  trial  of  the  cause. 
The  record  was  so  admitted.  The  defendants,  further  to  main- 
tain their  defense,  and  to  prove  title  in  themselves,  offered  to 
introduce  testimony  tending  to  prove  that,  at  the  time  of  the 
purchase  of  the  premises  at  the  sale  made  by  Carrington,  trus- 
tee, in  the  suit  of  Moore  &  Co.  v.  Kirk,  etc.,  the  only  improve- 
ment thereon  was  a  two-story  four-roomed  brick  house,  and  that, 

4  Statement  condensed. 


Sec.  2.]  New  Matter.  585 

about  the  year  1868,  the  defendants  erected  an  extensive  build- 
ing on  the  property,  at  a  cost  of  some  $4,000 ;  that  when  they 
began  such  building,  and  for  some  time  thereafter,  the  plaintiff 
Kirk  resided  upon  the  adjoining  premises ;  that  during  all  that 
time  he  well  knew  of  said  improvements,  made  no  objection 
thereto,  and  asserted  no  claim  to  the  property,  except  the  west 
three  feet  thereof,  adjoining  his  ground,  and  which  he  claimed 
as  an  alley,  and,  even  as  to  such  portion,  he  subsequently  in- 
formed the  witness  he  was  mistaken;  and,  lastly,  that  the 
plaintiff,  though  residing  in  the  city  of  Washington  ever  since 
about  the  year  1865,  never,  to  defendant's  knowledge,  until  the 
commencement  of  this  action,  asserted  any  claim  to  the  prem- 
ises in  dispute. 

At  that  stage  of  the  trial  the  plaintiff  interposed  and  asked 
the  court  to  inform  the  jury  that  the  testimony  thus  offered,  in 
reference  to  the  defendant's  putting  improvements  on  the  prem- 
ises, was  inadmissible  in  law,  and  that  such  issue  ought  to  be 
found  for  the  plaintiff.  The  court  ruled  that  the  testimony  was 
admissible,  to  which  plaintiff  excepted.  The  defendants  then 
gave  the  said  testimony  in  evidence  to  the  jury,  who  rendered 
a  verdict  against  the  plaintiff  upon  the  issue  set  forth  by  the 
first  bill  of  exceptions. 

The  remaining  bills  of  exceptions  present,  in  different  forms, 
the  general  questions  whether  the  sale  by  Carrington,  as  trustee, 
on  the  19th  of  April,  1864,  was  or  was  not,  upon  the  face  of 
the  record  of  ]\Ioore  &  Co.  v.  Kirk,  etc.,  a  mere  nullity.  Its  val- 
idity is  assailed  by  the  plaintiff  on  various  grounds,  the  most 
important  of  which  seems  to  be:  1.  That  as  Moore  &  Co.  sued 
in  their  own  behalf  only,  and  not  for  the  benefit  of  themselves 
and  other  creditors,  the  jurisdiction  and  power  of  the  court  was 
exhausted  by  the  first  sale  (of  lot  No.  78),  which  raised  an 
amount  largely  in  excess  of  the  claims  for  which  Moore  &  Co. 
sued.  2.  That  the  utmost  which  the  court,  upon  the  pleadings, 
could  do  was  to  distribute  such  excess  among  the  other  cred- 
itors of  Kirk  who  should  appear,  in  proper  form,  and  establish 
their  claims.  3.  That  the  court  was  entirely  without  jurisdic- 
tion to  make  a  second  order  of  sale,  and  did  not  assume  to  exer- 
cise any  such  power.  4.  That  the  second  sale  by  Carrington, 
having  been  made  without  any  previous  order  or  direction  of 
the  court,  its  confirmation,  and  the  deed  subsequently  made  to 
Hamilton,  were  absolutely  null  and  void. 


586  The  Answer,  [Chap.  Y. 

In  the  view  we  take  of  the  case,  it  is  unnecessary  to  pass  upon 
these  several  objections.  If  it  be  assumed  that  the  record  of  the 
suit  of  Moore  &  Co.  v.  Kirk,  etc.,  was  of  itself  insufficient  in  law 
to  divest  Kirk  of  title  to  the  premises  in  dispute,  or  to  invest 
Hamilton  with  title,  the  question  still  remains,  whether  the  facts 
disclosed  by  the  first  bill  of  exceptions  do  not  constitute  a  de- 
fense to  the  present  action. 

After  the  confirmation  of  the  sale  of  April  19,  1864,  before 
any  deed  had  been  made,  and  while  the  cause  was  upon  reference 
for  a  statement,  as  well  as  of  the  trustee's  accounts  as  for  dis- 
tribution of  the  fund  realized  by  the  sales,  Kirk,  it  seems,  ap- 
peared before  the  auditor,  by  an  attorney,  and  made  objection  to 
the  allowance  of  the  simple-contract  debts  which  had  been 
proven  against  him  in  his  absence.  So  far  as  the  record  dis- 
closes, no  other  objection  to  the  proceedings  was  interposed  by 
him.  Undoubtedly  he  then  knew,  he  must  be  conclusively 
presumed  to  have  known,  after  he  appeared  before  the  auditor, 
all  that  had  taken  place  in  that  suit  during  his  absence  from 
the  District,  including  the  sale  of  the  premises  in  dispute,  which 
took  place  only  a  few  months  prior  to  his  appearance  before 
the  auditor.  If  that  sale  was  a  nullity,  the  court,  upon  applica- 
tion by  Kirk,  after  his  appearance  before  the  auditor,  could 
have  disregarded  all  that  had  been  done  subsequently  to  the 
first  sale,  discharged  Hamilton's  bond,  returned  the  money  he 
had  paid,  and,  in  addition,  placed  Kirk  in  the  actual  possession 
of  the  property.  No  such  application  was  made.  No  such  claim 
asserted.  No  effort  was  made  by  him  to  prevent  the  execution 
of  a  deed  to  the  purchaser  at  the  second  sale.  So  far  as  the 
record  shows,  he  seemed  to  have  acquiesced  in  what  has  been 
done  in  his  absence.  In  1868,  three  years  after  his  return  to  the 
city,  and  two  years  after  Hamilton  had  secured  a  deed  in  pursu- 
ance of  his  purchase,  he  became  aware  that  Hamilton  was  in 
actual  possession  of  the  premises,  claiming  and  improving  them 
as  his  property.  He  personally  knew  of  Hamilton's  expendi- 
tures of  money  in  their  improvement,  and  remained  silent  as  to 
any  claim  of  his  own.  Indeed,  his  assertion  while  the  improve- 
ments were  being  made,  of  claim  to  only  three  feet  of  ground 
next  to  the  adjoining  lot  upon  which  he  resided,  was,  in  effect, 
a  disclaimer  that  he  had,  or  would  assert,  a  claim  to  the  re- 
mainder of  the  lots  7  and  9  which  Hamilton  had  purchased  at 
the  sale  in  April,  1864.     And  his  subsequent  declaration  that 


Sec.  2.]  New  Matter.  587 

he  was  in  error  in  claiming  even  that  three  feet  of  ground  only 
added  force  to  his  former  disclaimer  of  title  in  the  premises. 
Hamilton  was  in  possession  under  an  apparent  title  acquired, 
as  we  must  assume  from  the  records,  in  entire  good  faith,  by 
what  he  supposed  to  be  a  valid  judicial  sale,  under  the  sanction 
of  a  court  of  general  jurisdiction. 

The  only  serious  question  on  this  branch  of  the  case  is 
whether,  consistently  with  the  authorities,  the  defense  is  avail- 
able to  Hamilton  in  this  action  of  ejectment  to  recover  posses- 
sion of  the  property.  We  are  of  opinion  that  the  present  case 
comes  within  the  reasons  upon  which  rest  the  established  excep- 
tions to  the  general  rule  that  title  to  land  cannot  be  extinguished 
or  transferred  by  acts  in  pais  or  by  oral  declarations.  "What 
I  induce  my  neighbor  to  regard  as  true  is  the  truth  as  between 
us,  if  he  has  been  misled  by  my  asseveration,"  became  a  settled 
rule  of  property  at  a  ver}^  early  period  in  courts  of  equity.  The 
same  principle  is  thus  stated  by  Chancellor  Kent  in  Wendell  v. 
Van  Rensselaer,  1  Johns.  (N.  Y.)  Ch.  344:  "There  is  no  prin- 
ciple better  established,  in  this  court,  nor  one  founded  on  more 
solid  considerations  of  equity  and  public  utility,  than  that 
which  declares  that  if  one  man,  knowingly,  though  he  does  it 
passively,  by  looking  on,  suffers  another  to  purchase,  and  ex- 
pend money  on  land,  under  an  erroneous  opinion  of  title,  with- 
out making  known  his  own  claim,  shall  not  afterwards  be  per- 
mitted to  exercise  his  legal  right  against  such  person.  It  would 
be  an  act  of  fraud  and  injustice,  and  his  conscience  is  bound 
by  this  equitable  estoppel."    p.  354. 

While  this  doctrine  originated  in  courts  of  equity,  it  has  been 
applied  in  cases  arising  in  courts  of  law.^ 

In  The  King  v.  The  Inhabitants  of  Butterton  (6  Durnf.  &  E. 
554),  Mr.  Justice  Lawrence  said:  "I  remember  a  case  some 
years  ago  in  which  Lord  Mansfield  would  not  suffer  a  man  to  re- 

6  Gaston,  J.,  in  Jones  v.  Sasser,  advance  the  justice  of  a  particular 

1  Dev.  &  Batt.  (Law,)  452,  (1836):  case,  although   from  the  nature  of 

"So    far    as    equitable    estoppels  their  jurisdiction,   and   the  inflexi- 

have  been  definitely  recognized  as  ble     forms     of     proceeding,     these 

rules    of   law,    this    court    will    un-  courts  were   not   competent   to  the 

hesitatingly  and  cheerfully  respect  exact     administration     of     equity, 

them.     But  it   can  not  but   appre-  Thus   it    has    happened    that    legal 

hend    that    they    have    sometimes  certainty  has  been  prejudiced  with- 

been      incautiously      admitted      in  out    the    corresponding    advantage 

courts  of  law  from  a  solicitude  to  of  effecting  complete  justice." 


588  The  Answer.  [Chap.  V. 

cover,  even  in  ejectment,  where  he  had  stood  by  and  seen  the 
defendant  build  on  his  land." 

In  2  Smith,  Lead.  Cas.,  pp.  730-740  (7th  Am.  ed.,  with  notes 
by  Hare  and  Wallace),  the  authorities  are  carefully  examined. 
It  is  there  said  that  there  has  been  an  increasing  disposition  to 
apply  the  doctrine  of  equitable  estoppel  in  courts  of  law.    Again 
(pp.   733-734)  :     "The  question  presented  in  these  and  other 
cases,  which  involve  the  operation  of  equitable  estoppels  on  real 
estate,  is  both  difficult  and  important.     It  is  undoubtedly  true 
that  the  title  to  land  cannot  be  bound  by  an  oral  agreement,  or 
passed  by  matter  in  pais,  without  an  apparent  violation  of  those 
provisions  of  the  Statute  of  Frauds  which  require  a  writing 
when  the  realty  is  involved.    But  it  is  equally  well  settled  that 
equity  will  not  alloAv  the  statute  to  be  used  as  a  means  of  effect- 
ing the  fraud  which  it  was  designed  to  prevent,  and  will  with- 
draw every  case  not  within  its  spirit  from  the  rigor  of  its  letter, 
if  it  be  possible  to  do  so  without  violating  the  general  policy  of 
the  act,  and  giving  rise  to  the  uncertainty  which  it  was  meant 
to  obviate.     It  is  well  established  that  an  estate  in  land  may  be 
virtually  transferred  from  one  man  to  another  without  a  writ- 
ing, by  a  verbal  sale  accompanied  by  actual  possession,  or  by  the 
failure  of  the  owner  to  give  notice  of  his  title  to  the  purchaser 
under  circumstances  where  the  omission  operates  as  a  fraud; 
and,  although  the  title  does  not  pass  under  these  circumstances, 
a  conveyance  will  be  decreed  by  a  court  of  equity.     It  would, 
therefore,  seem  too  late  to  contend  that  the  title  to  real  estate 
cannot  be  passed  by  matter  in  pais,  without  disregarding  the 
Statute  of  Frauds ;  and  the  only  room  for  dispute  is  as  to  the 
forum  in  which  relief  must  be  sought.    The  remedy  in  such  cases 
.    lay  originally  in  an  application  to  chancery,  and  no  redress 
could  be  had  in  a  merely  legal  tribunal,  except  under  rare  and 
exceptional  circumstances.     But  the  common  law  has  been  en- 
larged and  enriched  under  the  principles  and  maxims  of  equity, 
which  are  constantly  applied  at  the  present  day  in  this  countrj% 
and  even  in  England,  for  the  relief  of  grantees,  the  protection  of 
mortgagors,  and  the  benefit  of  purchasers,  by  a  wise  adaptation 
of  ancient  forms  to  the  more  liberal  spirit  of  modern  times. 
The  doctrine  of  equitable  estoppel  is,   as  its  name   indicates, 
chiefly,  if  not  wholly,  derived  from  courts  of  equity,  and  as 
these  courts  apply  it  to  any  species  of  property,  there  would 
seem  no  reason  why  its  application  should  be  restricted  in  courts 


Sec.  2.]  New  Matter.  589 

of  law.  Protection  against  fraud  is  equally  necessary,  what- 
ever may  be  the  nature  of  the  interest  at  stake;  and  there  is 
nothing  in  the  nature  of  real  estate  to  exclude  those  wise  and 
salutary  principles,  which  are  now  adopted  without  scruple  in 
both  jurisdictions,  in  the  case  of  personalty.  And  whatever 
may  be  the  wisdom  of  the  change  through  which  the  law  has 
encroached  on  the  jurisdiction  of  chancery,  it  has  now  gone 
too  far  to  be  confined  within  any  limits  short  of  the  whole  field 
of  jurisprudence.  This  view  is  maintained  by  the  main  current 
of  decisions." 

This  question  in  a  different  form  was  examined  in  Dickerson 
V.  Colgrove,  100  U.  S.  578.  This  was  an  action  of  ejectment,  and 
the  defense,  based  upon  equitalile  estoppel,  was  adjudged  to  be 
sufficient.  We  there  held  that  the  action  involved  both  tlie  right 
of  possession  and  the  right  of  property,  and  that  as  the  facts  de- 
veloped showed  that  the  plaintiff  was  not  in  equity  and  con- 
science entitled  to  disturb  the  possession  of  the  defendants,  there 
was  no  reason  why  the  latter  might  not,  under  the  circumstances 
disclosed,  rely  upon  the  doctrine  of  equitable  estoppel  to  protect 
their  possession. 

Applying  these  principles  to  the  case  in  hand,  it  is  cjear,  upon 
the  fact  recited  in  the  first  bill  of  exceptions,  and  which  the  jury 
found  to  have  been  established,  that  the  plaintiff  is  estopped 
from  disturbing  the  possession  of  the  defendants.  He  knew,  as 
we  have  seen,  that  the  defendants  claimed  the  property  under  a 
sale  made  in  an  equity  suit  to  which  he  was  an  original  party. 
The  sale  may  have  been  a  nullity,  and  it  may  be  that  he  could 
have  repudiated  it  as  a  valid  transfer  of  his  right  of  propertv. 
Instead  of  pursuing  that  course,  he,  with  a  knowledge  of  all  the 
facts,  appeared  before  the  auditor  and  disputed  the  right  of  cer- 
tain creditors  to  be  paid  out  of  the  fund  which  had  been  raised 
by  the  sale  of  this  property.  He  forbore  to  raise  any  question 
whatever  as  to  the  validity  of  the  sale,  and  by  his  conduct  indi- 
cated his  purpose  not  to  make  any  issue  in  reference  to  the  pro- 
ceedings in  the  equity  suit.  Knowing  that  the  defendant's  claim 
to  the  premises  rested  upon  that  sale,  he  remained  silent  while 
the  latter  expended  large  sums  in  their  improvement,  and,  in  ef- 
fect, disclaimed  title  in  himself.  He  was  silent  when  good  faith 
required  him  to  put  the  purchaser  on  guard.  He  should  not 
now  be  heard  to  say  that  that  is  not  true  which  his  conduct  un- 


590  The  Answer.  [Chap.  V, 

mistakably  declared  was  true  and  upon  the  faith  of  which  others 
acted. 

The  evidence  upon  this  point  was  properly  admitted,  and 
operated  to  defeat  the  action  independently  of  the  question 
whether  the  sale  by  Carrington,  the  trustee,  and  its  confirma- 
tion by  the  court,  was,  itself,  a  valid,  binding  transfer  of  the 
title  to  the  purchaser.^ 

What  has  been  said  renders  it  unnecessary  to  consider  the 
questions  of  law  presented  in  the  remaining  bills  of  exceptions. 

Judgment  affirmed. 


BECK  V.  BECK. 

Court  of  Chancery  of  New  Jersey,  1887.     43  N.  J.  Eq.  39. 

Van  Fleet,  V.  C.  :  This  is  a  suit  by  a  wife  against  her  hus- 
band to  compel  him  to  account  for  the  rents  of  certain  real  estate 
which  she  says  he  has  collected  as  her  agent.  The  parties  were 
married  in  August,  1854.  The  complainant  holds  the  legal  title 
to  the  two  pieces  of  real  estate  in  the  city  of  Newark.  The  first 
was  conveyed  to  her  in  August,  1859,  and  is  situate  on  Spring- 
field avenue.     The  second  was  conveyed  to  her  in  November, 

6  For  a  collection  of  the  cases  fraud  permissible  to  be  proved  at 
involving  equitable  estoppel  as  a  law  in  these  cases  is  fraud  touch- 
defence  to  a  legal  title,  see  Kenny  ing  the  execution  of  the  instru- 
V.  MeKenzie,  127  N.  W.  597  (1909),  ment,  such  as  misreading,  the  sur- 
49  L.  R.  A.  (N.  S.)  775,  annotated.  reptitious  substitution  of  one  pa- 
It  should  not  be  assumed  that  \,er  for  another,  or  obtaining  by- 
corresponding  changes  have  taken  some  other  trick  or  device  an  in- 
place  in  all  other  situations  where  strumeut  which  the  party  did  not 
a  court  of  equity  would  protect  a  intend  to  give.  Hartshorn  et  al. 
defendant  against  a  legal  claim.  v.  Day,  19  Howard  211;  Osterhout 
In  the  absence  of  statute  the  de  v.  Shoemaker  and  Others,  3  Hill 
velopment  has  not  been  uniform.  (N.  Y.),  513;  Belden  v.  Davis,  2 
Mr.  Justice  Swayne,  in  George  Hall  (N.  Y.),  433;  Franehot  v. 
V.  Tate,  102  U.  S.  564,  (1880):  Leach,  5  Cow.  (N.  Y.),  506.  The 
*  *  *  "Proof  of  fraudulent  rep-  remedy  is  by  a  direct  proceeding 
resentations  by  Myers  &  Green,  to  avoid  the  instrument.  Irving 
beyond  the  recitals  in  the  bond,  to  v.  Humphrey,  1  Hopk.  (N.  Y.) 
induce  its  execution  by  the  plain-  284."  *  »  * 
tiff  in  error,  was  properly  rejected.  And  so  in  Whitcomb  v.  Shultz, 
It  is  well  settled   that  the   only  223  Fed.  268,    (1915). 


Sec.  2.]  New  Matter.  591 

1877,  and  is  situate  on  the  corner  of  New  and  Plane  streets. 
There  are  buildings  on  both  tracts,  which  have  been  almost  con- 
stantly occupied  by  tenants  since  the  complainant  obtained  title. 
The  defendant  has  collected  all  the  rents,  but  has  neither  paid 
nor  accounted  to  the  complainant  for  them.  The  complainant, 
by  her  bill,  says  that  she  authorized  the  defendant  to  collect  the 
rents,  with  the  understanding  that  he  should  apply  them  to  the 
payment  of  taxes  and  other  necessary  annual  charges  of  the 
premises,  and  also  in  making  such  improvements  on  the  premises 
as  would  inure  to  her  benefit  and  account  to  her  from  time  to 
time  for  any  balance  which  remained  in  his  hands.  The  com- 
plainant revoked  the  defendant's  agency  in  October,  1886,  but 
he,  notwithstanding,  persisted  in  attempting  to  collect  the  rents, 
and  because  some  of  the  tenants  refused  to  pay  rent  to  him  he 
instituted  legal  proceedings  to  dispossess  them.  The  complain- 
ant then  brought  this  suit,  asking  that  the  defendant  might  be 
required  to  account  for  the  rents  he  had  already  received,  and 
also  that  he  be  restrained  from  making  further  collections,  and 
from  molesting  or  annoying  her  tenants.  The  defendant  has 
answered,  denying  the  complainant's  right  to  an  account.  He 
says  that  he  is  the  real  owner  of  both  tracts.  His  claim  in  this 
regard  is  put  upon  the  ground  of  a  resulting  trust.  He  says 
that  he  made  the  contract  of  purchase  for  each  tract,  and  sub- 
sequently paid  the  whole  of  the  purchase  money  with  his  own 
funds,  his  wife  not  contributing  a  penny.  He  likewise  says 
that  he  caused  the  legal  title  to  the  lands  to  be  made  to  his  wife, 
but  that  he  did  so  without  either  an  agreement  or  purpose  to 
make  a  gift  to  her,  or  a  settlement  upon  her,  and  that  the  lands 
have  always,  since  she  obtained  title,  been  treated  and  considered 
as  belonging  to  him,  she  holding  the  legal  title  in  trust  for 
him.  The  defendant  puts  his  right  to  the  rents  of  the  property 
on  the  corner  of  New  and  Plane  streets  on  an  additional  ground. 
He  says  that  property  was  sold  by  the  city  of  Newark,  to  enforce 
an  unpaid  assessment  made  against  it,  for  a  term  of  50  years 
from  the  16th  day  of  March,  1871,  and  that  a  legal  title  was 
subsequently  made  to  the  purchaser  in  execution  of  the  sale, 
and  that  he  (defendant)  became  invested  with  such  title  on  the 
15th  of  July,  1878,  and  thereby  acquired  a  right  to  the  posses- 
sion and  use  of  this  part  of  the  property  in  controversy  superior 
to  any  which  the  complainant  can  claim.  The  defendant  has 
also  made  these  facts  the  basis  of  a  cross-bill,  in  which  he  asks  a 


592  The  Answer.  [Chap.  V. 

decree  declaring  that  the  complainant  holds  the  legal  title  to 
the  lands  in  question  in  trust  for  him,  and  directing  her  to 
convey  them  to  him. 

This  cross-bill  is  the  subject  of  the  present  controversy.  The 
complainant  moves  to  strike  it  out  both  on  the  ground  that  it  is 
useless  and  impertinent;  useless,  because,  as  her  counsel  con- 
tends, if  the  facts  stated  in  the  cross-bill  were  set  up  in  the  an- 
swer alone,  and  proved,  they  would  constitute,  under  the  answer, 
as  complete  and  perfect  a  defense  to  the  case  made  by  the  bill  as 
can  be  made ;  impertinent,  because  the  cross-bill  seeks  to  thrust 
into  the  case  a  question  entirely  foreign  to  the  matter  put  in 
litigation  by  the  original  bill. 

There  can  be  no  doubt,  I  think,  that  a  cross-bill  which  merely 
sets  up  matter  which  the  defendant  may  make  equally  available 
and  effectual  as  a  defense  by  answer,  is  demurrable ;  for  in  such 
case  the  cross-bill  is  not  only  unnecessary,  but  useless.  The  only 
purpose  it  could  serve  in  such  ease  would  be  to  incumber  the  rec- 
ord, and  add  to  the  expense  of  litigation.  And  it  is  also  well 
settled  that  a  defendant  can  only  use  a  cross-bill  against  a  com- 
plainant as  a  means  of  defense.  It  must,  therefore,  be  confined 
to  the  matter  put  in  litigation  by  the  original  bill,  and  cannot  be 
used  by  a  defendant  as  a  means  of  obtaining  relief  against  a  com- 
plainant in  respect  to  a  cause  of  action  distinct  from  and  wholly 
unconnected  with  the  complainant's  cause  of  action.  Carpenter 
V.  Gray,  37  N.  J.  Eq.  389 ;  Kirkpatrick  v.  Corning,  39  N.  J.  Eq. 
136 ;  Krueger  v.  Ferry,  41  N.  J.  Eq.  432  (5  Atl.  Rep.  452) .  The 
question  presented  for  judgment  must  be  decided  by  these  rules. 

So  far  as  the  defendant's  defense  rests  on  a  legal  title,  it 
would  seem  to  be  entirely  clear  that  he  does  not  need  the  aid  of 
a  cross-bill,  but  that  he  may  make  it  fully  and  effectually  under 
his  answer.  The  gravamen  of  the  complainant's  case  is  that  the 
defendant  has,  as  her  agent,  received  the  rents  of  certain  real 
estate  which  she  holds  for  her  own  use,  and  refused  to  pay  them 
to  her.  The  defendant  denies  the  principal  fact  upon  which 
this  claim  rests.  He  says  that  the  complainant  does  not  hold  the 
legal  title  to  a  part  of  the  real  estate  of  which  she  claims  the 
rent,  but  that  he  does.  If  he  establishes  this  fact,  he  will  show 
as  perfect  and  as  complete  a  defense  as  can  be  shown,  and  a 
decree  of  dismissal  denying  that  the  complainant  is  entitled  to 
these  rents  will  render  his  defense,  both  in  point  of  protection 
and  prevention,  as  adequate  and  efficacious  as  can  be. 


Sec.  2.]  New  Matter.  596 

The  other  branch  of  the  defense  stands,  however,  in  a  very 
different  position,  and  is  subject  to  entirely  different  rules.  The 
deeds  under  which  the  complainant  claims  the  rents  in  contro- 
versy show  on  their  face  that  she  is  the  absolute  owner,  for  her 
own  use,  of  the  lands  from  which  the  rents  were  derived.  So 
long  as  the  deeds  stand  in  their  original  form,  the  complainant's 
title  to  the  rents  must  be  regarded  as  perfect.  The  defendant 
seeks  to  change  the  form  of  the  deeds,  or  at  least  their  effect. 
They  are  now  absolute,  investing  the  complainant  with  a  perfect 
legal  title  to  the  lands  for  her  own  use.  The  defendant  seeks  to 
fasten  a  trust  upon  the  complainant's  title.  This  can  only  be 
done  by  the  decree  of  this  court,  and  until  this  court  has  de- 
clared, by  its  decree,  that  the  complainant's  title  is  subject  to  a 
trust,  the  deeds  must  be  construed  and  enforced,  here  and  else- 
where, according  to  their  plain  terms.  No  such  decree  can  be 
made  except  upon  a  bill,  either  original  or  cross.  Parol  evidence 
is  admissible  for  the  purpose  of  establishing  a  resulting  trust, 
but  not  for  the  purpose  of  contradicting  the  terms  of  a  valid 
written  contract.  If  evidence  of  this  kind  should  be  offered  and 
received  in  this  case,  under  an  answer  alone,  the  only  office  it 
could  perform  \w)uld  be  to  contradict  the  terms  of  the  deeds; 
for,  in  this  condition  of  the  pleadings,  the  court  would  be 
poAverless,  even  if  such  should  be  shown  to  be  the  fact,  to  fasten 
a  trust  on  the  complainant 's  title.  So  that  the  only  purpose  the 
admission  of  such  evidence  could  serve,  if  the  cross-bill  is  sup- 
pressed, would  be  to  contradict  the  terms  of  the  deeds.  But 
with  the  cross-bill  constituting  part  of  the  record  in  the  case, 
such  evidence  could  be  properly  received,  not  for  the  purposes 
of  contradiction,  but  to  lay  the  foundation  for  effecting  a 
change,  by  judicial  means,  in  the  complainant's  title — by  mak- 
ing her  title,  which  is  now  free  and  unclogged,  subject  to  a 
trust.  The  case  must,  in  my  judgment,  be  ruled  by  the  prin- 
ciples which  govern  the  reformation  of  written  contracts.  In 
the  absence  of  fraud,  a  defendant  cannot  show,  under  an  answer 
alone,  that  a  contract  which  is  perfect  and  complete  in  all  its 
parts  differs,  in  a  material  respect,  from  the  contract  which  he 
made;  but  if  he  desires  to  show  that  such  is  the  fact,  he  must 
ask  by  cross-bill  to  have  the  contract  reformed.''^    Van  Syckel  v. 


594 


The  Answer. 


[Chap.  V. 


Dalrymple,  32  N.  J.  Eq.  233,  S.  C.  on  appeal,  Id.  826.    * 
The  complainant's  motion  must,  therefore,  be  denied. 


CRARY  V.  GOODMAN. 

Court  of  Appeals  of  New  York,  1855.     12  N.  Y.  266. 

Action  to  recover  possession  of  a  parcel  of  land  situate  in 
Cattaraugus  county,  commenced  in  December,  1848.  The  cause 
was  tried  in  January,  1850,  before  Mr.  Justice  Hoyt.  The  plain- 
tiff proved  that  he  had  the  legal  title  to  the  premises  in  contro- 
versy. The  defendant  proved  that  he  occupied  the  premises  as 
tenant  under  one  Huntley,  and  that  they  were  adjacent  to  other 
lands  owned  by  the  latter,  and  he  alleged  in  his  answer,  and 
offered  to  prove  upon  the  trial,  facts  tending  to  show  that  the 
land  in  dispute  was  included  in  the  purchase,  by  Huntley,  of  the 
adjacent  premises  from  the  plaintiff's  grantors,  and  that  by  a 
mutual  mistake  of  the  parties,  it  was  not  included  in  the  con- 
veyance thereof;  and  that  in  equity  Huntley*  was  entitled,  as 


7  It  is  entirely  conceivable  that 
courts  of  equity  might  have  re- 
fused relief  to  a  complainant  whose 
title  was  obtained  by  fraud,  or 
was  held  on  a  constructive  or  re- 
sulting trust  for  the  defendant, 
and  so  have  recognized  such  mat- 
ters as  defences.  But  they  were 
probably  influenced  against  such 
an  innovation  because  of  the  prac- 
tical inconvenience  of  attempting 
to  deal  with  fraud,  mistake,  re- 
sulting trusts,  etc.,  on  the  basis 
of  a  defence  merely,  whereby  the 
complainant  would  have  been  de- 
prived of  the  benefit  of  an  answer, 
which  he  would  have  had  to  a 
cross  bill.     Ed. 

8  Morton,  District  Judge:  In 
Breitung  v.  Packard,  260  Fed.  895, 
(1919):  The  gist  of  the  alleged 
equitable  defense  is  that  the  plain- 
tiffs agreed  with  a  third  person  to 


buy  from  it  certain  stock  at  a 
price  more  than  sufficient  to  pay 
the  entire  issue  of  the  notes  in 
suit,  and  that  the  third  person 
agreed  with  the  defendants  to  ap- 
ply the  proceeds  of  said  salt  to  the 
payment  of  the  notes.  The  ques- 
tions are:  (1)  Whether  such  facts 
constitute  in  equity  a  defense;  and 
if  so  (2)  whether  the  defense  can 
be  set  up  by  equitable  answer  in 
an  action  at  law,  under  the  Act 
of  March  3,  1915,  c.  90  (38  Stat. 
956  [U.  S.  Comp.  St.  1918,  §  1251b]). 
Discussing  the  second  of  these 
questions,  it  is  obvious  that  the 
third  person  is  a  necessary  party 
to  such  a  defense,  and  that  the 
defense  ought  not  to  be  allowed 
unless  the  third  party  can  be 
brought  into  the  case.  The  ordi- 
nary practice  in  actions  at  law  af- 
fords no  way  of  doing  so.     It  can- 


Sec.  2.] 


New  Matter, 


595 


against  the  plaintiff,  and  his  grantors,  to  a  conveyance  of  the 
premises,  the  possession  of  which  was  in  controversy.  To  this 
evidence,  the  counsel  for  the  plaintiff  objected;  and  the  justice 
decided  that  no  equitable  defense  could  be  interposed  in  this 
action  to  the  plaintiff's  right  to  recover  upon  the  legal  title, 
and  rejected  the  evidence;  the  counsel  for  the  defendant  ex- 
cepted. A  verdict  was  rendered  in  favor  of  the  plaintiff.  From 
the  judgment  entered  on  this  verdict,  the  defendant  appealed. 
The  case  was  heard  on  the  appeal  at  a  general  term  of  the  su- 
preme court  in  the  8th  district,  and  the  judgment  affirmed. 
(See  9  Barbour  657.)^  The  defendant  appealed  to  this  court. 
The  case  was  submitted  on  printed  briefs. 


not  be  done  under  the  act  unless 
the  answer  be  given  the  effect  of 
a  bill  in  equity  to  restrain  the 
action  at  law.  There  is  a  dictum 
in  II.  S.  V.  Eichardson,  223  Fed. 
1010,  1013,  139  C.  C.  A.  386— a 
jury-waived  case — which  perhaps 
sustains  that  view.  But  the  point 
has  never  been  decided,  and  the 
practical  difficulties  which  such  a 
construction  of  the  act  would  cre- 
ate in  jury  trials  are  so  great  and 
apparent,  that  it  seems  to  me  un- 
likely Congress  could  have  so  in- 
tended. Bills  setting  up  equitable 
defenses  are  often  complicated,  in- 
volving many  parties,  and  raising 
many  questions.  A  jury  trial  is 
not  a  flexible  proceeding,  nor  well 
adapted  to  the  determination  of 
complicated  and  confused  issues. 
If  the  act  be  given  the  broad 
construction  suggested,  cases  can 
easily  be  imagined  which  it  would 
be  impossible  to  try  properly  be- 
fore a  jury. 

Massachusetts  has  had  a  statute 
allowing  equitable  defenses  in  ac- 
tions at  law  since  1883.  Eev.  Laws 
Mass.  e.  173,  §  28.  The  point  un- 
der discussion  seems  not  to  have 
been  raised  under  it;  but  I  have 
found  no  decision  in  which  a  third 
party  was  brought  into  an  action 


at  law  by  an  equitable  answer. 
It  seems  to  have  been  assumed 
that  the  statute  only  applied  to 
such  defenses  as  could  be  ade- 
quately made  between  the  two  par- 
ties to  the  original  action.  That 
seems  to  me  to  be  the  sound  con- 
struction of  the  act  in  question. 

It  follows  that,  as  this  answer 
discloses  the  necessity  of  a  third 
party  in  order  to  establish  the  de- 
fense which  it  sets  up,  it  is  not 
good  under  the  act;  and  the  de- 
murrer  to   it   should  be   sustained. 

9  Sill,  P.  J.  (in  Crary  v.  Good- 
man, 9  Barbour  657):  "It  fol- 
lows that  an  equitable  right  in  a 
defendant,  to  have  laud  conveyed 
to  him,  is  not  a  defense  to  an 
action  for  the  possession,  any  more 
than  it  was  before  the  Code  was 
adopted.  The  right  to  the  posses- 
sion is  incidental  to  the  legal  title; 
or  rather  it  is  one  essential  ingred- 
ient of  it.  Where  is  the  reason 
for  saying  that  the  sixty-ninth  sec- 
tion of  the  code  has  detached  the 
essential  interest  from  the  legal 
estate  and  appended  it  to  an  equi- 
table interest  merely?  The  argu- 
ment comes  to  this,  and  to  main- 
tain the  defense,  it  must  be  held 
that  the  code  has  transferred  the 
right    to    the    possession    of    laud 


596  The  Answer.  [Chap.  V. 

Johnson,  J.,  delivered  the  opinion  of  the  court : 
The  principal  ground  on  whieh  this  case  was  disposed  of  at 
the  trial  was,  that  in  an  action  to  recover  real  property  brought 
under  the  Code  of  1848,  when  the  plaintiff's  claim  is  founded 
upon  a  legal  title,  the  defendant  cannot  avail  himself  of  an  equi- 
table right  to  defeat  that  title  by  way  of  defense  in  the  suit. 
This,  likewise,  was  the  single  ground  upon  which  the  judgment 
at  the  trial  was  affirmed  at  the  general  term.  (9  Barb.  657.) 
Although  much  difference  of  opinion  has  existed  in  the  different 
courts  of  this  state  in  regard  to  the  effect  of  the  Code  of  Pro- 
cedure in  this  particular,  the  question  has  been  adjudged  in  this 
court  (Dobson  v.  Pearce,  ante,  156)  ;  and  it  is  now  neither  neces- 
sary nor  proper  to  discuss  it.  In  the  case  cited,  which  was  an 
action  upon  a  judgment,  the  Superior  Court  of  the  City  of  New 
York  allowed,  as  a  defense  to  the  action,  facts  which  made  out  a 
right  in  the  defendant  to  relief  upon  equitable  grounds  against 
the  judgment,  but  which  confessedly  would  not  have  been  avail- 
able as  a  defense  to  the  action  at  law  before  the  Code.  The  case 
arose  and  was  tried  in  the  superior  court,  before  the  amend- 
ments to  the  Code  passed  in  1852 ;  one  of  which  provides,  in 
express  terms,  that  the  defendant  may  set  up  as  many  defenses 
as  he  has,  whether  they  are  such  as  have  been  theretofore  de- 
nominated legal,  or  equitable,  or  both.  This  judgment  was 
affirmed  in  this  court  upon  the  ground  that  since  the  enactment 
of  the  Code,  which  in  terms  abolishes  the  distinction  between 
actions  at  law  and  suits  in  equity,  and  prescribes  but  a  single 
form  of  civil  action,  the  question  in  an  action  is  not  whether  the 
plaintiff  has  a  legal  right  or  an  equitable  right,  or  the  defendant 

from  the  legal  owner  to  him  who  stitute  an  equitable  defence  to  the 
has  an  equitable  claim  to  the  title.  action.  But  to  give  it  efficacy,  it 
Such  an  interpretation  would  pro-  is  necessary  to  insist  that  the  equi- 
duce  the  consequences  which  the  table  owner  has  the  right  to  posses- 
commissioners  said  it  was  their  sion,  as  between  him  and  the  owner 
duty  to  guard  against.  It  would,  in  fee.  If  this  were  so,  the  de- 
by  construction,  "encroach  upon  fence  would  be  a  legal  one.  The 
substantial  rights,"  which  both  the  action  is  for  the  possession,  and  he 
common  law  and  pre-existing  stat-  who  is  entitled  to  the  possession 
utes  concurred  in  securing  to  him  is,  by  the  common  law,  entitled  to 
who  holds  the  legal  title.  It  seems  judgment.  Thus  the  case  is  placed 
to  me  that  the  defendant 's  argu-  without  the  operation  of  the  sec- 
ment,  when  followed  out,  destroys  tion,  the  application  of  which  is 
itself.  The  facts  offered  to  be  indispensable,  as  a  starting  point 
proved  by  him,  are  claimed  to  con-  in  the  argument." 


Sec.  2.]  New  Matter.  597 

a  legal  or  an  equitable  defense  against  the  plaintiff's  claim; 
but  whether,  according  to  the  whole  law  of  the  land,  applicable 
to  the  case,  the  plaintiff  makes  out  the  right  which  he  seeks  to 
establish,  or  the  defendant  shows  that  the  plaintiff  ought  not  to 
have  the  relief  sought  for.^° 

As  the  court,  upon  the  defendant's  offers  of  proof,  ruled  that 
no  equitable  defense  could  be  interposed,  and  in  this  was,  as  we 
have  seen,  in  error,  the  defendant  is  entitled  to  a  new  trial.  We 
express  no  opinion  whether  the  defendant  did,  or  did  not  make 
out  by  his  offers  such  an  equitable  defense,  because,  if  his  offer 
was  defective,  under  the  distinct  ruling  of  the  court,  no  alter- 
ation in  its  terms  or  substance  would  have  availed  him.  The 
judgment  should  be  reversed  and  a  new  trial  ordered. 

Judgment  accordingly. 


WARD  V.  QUINLIVIN. 

Supreme   Court  of  Missouri,   1874.     57  Mo.   425. 

Adams,  Judge. — This  was  an  action  on  a  judgment  rendered 
in  the  State  of  New  York,  in  Supreme  Court  of  Steuben  County 
in  that  State,  on  the  17th  day  of  October,  1871,  for  $586.50. 

The  defendant  in  his  answer  set  up  and  relied  on  an  equi- 
table defense,  to  the  effect  that  the  judgment  sued  on  was  ob- 
tained against  him  by  fraud,  deceit  and  misrepresentation  of 
plaintiff,  his  agents  and  attorneys,  under  the  folloAving  circum- 
stances: About  April,  1870,  the  defendant  was  in  the  store 
room  of  plaintiff,  in  the  to^vn  of  Bixville,  in  the  county  of 
Steuben,  in  the  State  of  New  York,  when  plaintiff  proposed 
selling  to  him  a  piece  of  land  at  $18.00  per  acre,  and  in  order 

10  See  also  Hoppaugh  v.  Struble,  facts   which   would   entitle   the   de- 

60   N.  Y.  430,    (1875),  in  which  it  fendant    to    a   reformation    of    the 

was  said,  in   dealing  with   the  de-  deed  would  establish  his  equitable 

fence  that   the   land  sued   for  had  right  to  the  possession  and  would 

been     omitted     by     mistake     from  as  effectually  defeat  the  action  as 

plaintiff's   deed  to   the   defendant:  would   legal  title."     Compare   Im- 

"But    a   reformation   of   the    deed  perial  Shale  Co.  v.  Jewett,  169  N. 

was  not   necessary  to   the   defence  Y.  143,  (1901),  ante  p.  35. 
of  the  action.     The  same  state   of 


598  The  Answer.  [Chap.  V. 

to  defraud  defendant,  fraudulently  induced  him  to  drmk  a 
large  quantity  of  whiskey,  and  thus  made  him  so  drunk  that 
he  did  not  know  what  he  was  doing,  and  procured  his  signature 
to  the  bond  on  which  said  judgment  was  rendered. 

The  defendant  alleges,  that  he  set  up  this  defense  to  the  action 
in  the  New  York  court,  and  attended  court  for  the  purpose  of 
establishing  his  defense,  that  the  plaintiff  and  his  attorneys, 
with  a  view  to  cheat  and  defraud  him,  and  to  obtain  an  unfair 
advantage  over  him,  falsely  and  fraudulently  represented  to 
defendant  and  his  attorneys,  that  they  would  dismiss  their  suit 
— that  plaintiff  had  no  cause  of  action,  and  would  dismiss  the 
pending  suit,  and  that  defendant  and  his  attorney  might  go 
home  and  give  the  matter  no  further  attention;  that  relying 
upon  their  statements  and  representations,  the  defendant  and 
his  attorney,  abandoned  all  further  defense,  and  went  to  their 
homes,  and  soon  afterwards  the  defendant  removed  from  the 
State  of  New  York  to  the  State  of  Missouri.  And  defendant 
charges  that  after  he  had  thus  removed  to  the  State  of  Missouri, 
the  plaintiff  took  judgment  in  the  action. 

The  court  below  ruled  out  this  defense,  and  the  action  of  the 
court  in  this  regard  raises  the  only  question  for  our  con- 
sideration. 

The  doctrine  that  a  judgment  of  a  court  of  record  of  a  sister 
State,^  where  the  parties  appear,  or  are  duly  summoned,  im- 
ports absolute  verity,  and  cannot  be  impeached  at  law,  is  too 
well  settled  to  need  illustration  or  citation  of  authorities.  But, 
conceding  this  principle  to  be  true,  it  is  clear  to  my  mind,  that 
in  equity,  judgments,  whether  foreign  or  domestic,  may  be  de- 
clared void  for  fraud,  in  actions  brought  to  enforce  them  in 
this  State. 

In  Christmas  v.  Russell  (5  Wal.  290)  the  court  held  that  a 
plea  of  fraud  in  obtaining  a  judgment,  was  had  in  an  action  on 
the  judgment.  But  that  court,  in  the  same  case,  held  that  a 
direct  suit  in  chancery^  might  be  maintained  to  enjoin  such 

lA  judgment  of  a  court  of  rec-  19  Johnson,   162,   (N.  Y.   1821). 
ord    of    another    state     creates    a  2  In  Dobson  v.  Pearce,  12  N.  Y. 

debt    of    record,    and    must    be    so  156,  (1854)  a  judgment  at  law  had 

recognized    in    other    states    under  been  recovered  against  the  defend- 

the  ' '  full  faith  and  credit ' '  clause  ant  in  the  State  of  New  York,  and 

of  the  Constitution  of  the  United  a  suit  brought  upon  it  in  the  State 

States     Andrews    v.    Montgomery,  of  Connecticut,  where  be  began  an 


Sec.  2.] 


New  Matter. 


599 


judgment  in  the  State  where  it  was  rendered.  Our  practice  act 
allows  equitable  as  well  as  legal  defenses  to  be  set  up  in  actions 
at  law,  and  our  citizens  ought  not  to  be  driven  to  foreign  courts 
to  seek  remedies  against  judgments  procured  by  fraud.    When 


indiBpendent  suit  in  chancery  to 
restrain  the  action  on  the  judg- 
ment because  of  fraud  in  the  pro- 
curement, and  obtained  a  perma- 
nent injunction.  Later,  when  sued 
en  the  judgment  in  New  York,  de- 
fendant set  up  the  fraud  and  the 
Connecticut  decree  as  a  defence, 
and  this  was  allowed  on  the  fol- 
lowing reasoning,  by  Allen,  J., 
*     *     * 

"Under  our  present  judiciary 
system,  the  functions  of  the  courts 
of  common  law  and  of  chancery 
are  united  in  the  same  court,  and 
the  distinctions  between  actions  at 
law  and  suits  in  equity,  and  the 
forms  of  all  such  actions  and  suits 
are  abolished,  and  the  defendant 
may  set  forth  by  answer  as  many 
defences  as  he  may  have,  whether 
they  be  such  as  have  been  hereto- 
fore denominated  legal  or  equita- 
ble, or  both.  (Code  §§  69,  150.) 
The  Code  also  authorizes  affirma- 
tive relief  to  be  given  to  a  de- 
fendant in  an  action  by  the  judg- 
ment. (§  274.)  The  intent  of  the 
legislature  is  very  clear,  that  all 
controversies  respecting  the  subject 
matter  of  the  litigation  should  be 
determined  in  one  action,  and  the 
provisions  are  adapted  to  give  ef- 
fect to  that  intent.  Whether  there- 
fore, fraud  or  imposition  in  the 
recovery  of  a  judgment  could  here- 
tofore have  been  alleged  against  it 
collaterally  at  law  or  not,  it  may 
now  be  set  up  as  an  equitable  de- 
fence to  defeat  a  recovery  upon  it. 
Under  the  head  of  equitable  de- 
fences are  included  all  matters 
which  would  before  have  author- 
ized an  application  to  the  court  of 


chancery  for  relief  against  a  legal 
liability,  but  which,  at  law,  could 
not  have  been  pleaded  in  bar.  The 
facts  alleged  by  way  of  defence 
in  this  action  would  have  been 
good  cause  for  relief  against  the 
judgment  in  a  court  of  chancery 
and  under  our  present  system  are 
therefore,  proper  matters  of  de 
fence;  and  there  was  no  necessity' 
or  propriety  for  a  resort  to  a  sepa 
rate  action  to  vacate  the  judgment 
In  Connecticut,  although  law  and 
equity  are  administered  by  the 
same  judges,  still  the  distinction 
between  these  systems  is  preserved, 
and  justice  is  administered  under 
the  head  of  common  law  and  chan- 
cery jurisdiction  by  distinct  and 
appropriate  forms  of  procedure; 
and  hence,  as  it  was  at  least  doubt- 
ful whether  at  law  the  fraud  al- 
leged would  bar  a  recovery  upon 
the  judgment,  a  resort  to  the  chan- 
cery powers   of  the   court   of   that 

state  was  proper,  if  not  necessary. 

»      »      « 

In  the  State  of  Connecticut  it 
is  quite  clear  the  question  of  fraud 
would  not  be  an  open  question  be- 
tween the  parties,  but  would  be 
considered  entirely  settled  by  the 
decree  of  the  court  of  that  state; 
and  as  full  faith  and  credit  are 
to  be  given  by  each  state  to  the 
judicial  proceedings  of  every  other 
state,  that  is,  the  same  credit, 
validity  and  effect  as  they  would 
have  in  the  state  in  which  they 
were  had,  the  parties  are  concluded 
in  the  courts  of  this  state  by  the 
judgment  of  the  court  in  Connec- 
ticut directly  upon  the  question  in 
issue.      (Hampton   v.   McConuel,   3 


600 


The  Answer. 


[Chap.  V 


sued  here  upon  such  judgments,  they  may  set  up  this  equitable 
defense  as  a  complete  bar.^     (See  Marx  v.  Fore,  51  Mo.  691.) 

Judgment  reversed  and  the  cause  remanded.     Judge  Sher- 
wood absent,  the  other  judges  concur. 


GUNN  V.  MADIGAN. 

Supreme  Court  of  Wisconsin,  1871.     28  Wis.  158. 

Lyon,  J.* — The  complaint  alleges  that  James  Francis  and 
Henry  Gormley,  on  the  9th  day  of  April,  1867,  made,  executed, 
stamped  and  delivered  to  the  defendant  their  promissory  note 
in  writing,  a  copy  of  which  is  inserted  in  the  complaint.  The 
note  is  dated  April  9th,  1867,  is  for  $201.66  and  ten  per  cent, 
interest,  and  was  payable  October  1st,  1867. 

The  complaint  further  states  that  on  the  9th  day  of  October, 
1867,  the  defendant,  for  value  received,  sold,  transferred,  as- 
signed and  delivered  said  note  to  the  plaintiff,  and  then  and 
there  guaranteed  the  payment  thereof  to  the  plaintiff  by  his 


Wheat.  234.)  The  decree  of  the 
court  of  chancery  of  the  State  of 
Connecticut  as  an  operative  decree, 
so  far  as  it  enjoined  and  restrained 
the  parties,  had  and  has  no  extra- 
territorial efficacy,  as  an  injunction 
does  not  affect  the  courts  of  this 
state;  but  the  judgment  of  the 
court  upon  the  matters  litigated 
is  conclusive  upon  the  parties 
everywhere,  and  in  every  forum 
where  the  same  matters  are  drawn 
in  question.  It  is  not  the  partic- 
ular relief  which  was  granted 
which  affects  the  parties  litigating 
in  the  courts  of  this  state;  but  it 
is  the  adjudication  and  determina- 
tion of  facts  by  that  court,  the 
final  decision  that  judgment  was 
procured  by  fraud,  which  is  oper- 
ative here  and  necessarily  prevents 
the  plaintiff  from  asserting  any 
claim  under  it  " 


And  so  in  Burnley  v.  Stevenson, 
24  Ohio  St.  474,  (1893).  At  com- 
mon law  neither  the  fraud  nor  a 
domestic  decree  would  have  de- 
feated an  action  at  law  on  a  spe- 
cialty or  a  record,  Anon.  Jenkins 
Century  Cases,  108,  (1459),  S.  C. 
37  H.  VI,  13,  translated  by  the 
late  Professor  Ames,  Cases  on  Eq. 
Jur.   1. 

3  Ace.  Kogers  v.  Grimes,  21  la. 
58,  (1866);  Jasper  v.  Currie,  6f» 
Neb.  4  (1903);  S.  C.  195  U.  S.  144, 
reversing  the  Supreme  Court  of 
Nebraska  on  the  ground  that  the 
facts  stated  did  not  amount  to 
fraud.  Gray  v.  Richmond,  167  N. 
Y.  348,  (1901),  semble;  Levin  v. 
Gladstien,  142  N.  C.  482,  (1906^, 
32  L.  R.  A.  (N.  S.)  905,  annotated. 

4  Statement  and  part  of  opinion 
dealing  with  the  sufficieocy  of  the 
complaint  omitted. 


Sec.  2.]  New  Matter.  601 

written  guaranty,  duly  stamped,  endorsed  on  the  back  of  said 
note  as  follows : 

"For  value  received,  I  guaranty  the  payment  of  the  within 
note  when  due. 

"Dated  October  9th,  1867. 

His 
"John  X  Madigan." 
mark. 

It  concludes  as  follows: 

"And  although  said  note  became  due  and  payable  before  the 
commencement  of  this  action,  yet  the  said  makers  of  said  note, 
nor  the  said  defendant,  have  paid  the  same  or  any  part  thereof, 
except  the  interest  to  October  9th,  1867;  that  the  plaintiff  is 
now  the  owner  and  holder  of  said  note  and  guaranty;  and  that 
there  is  now  due  on  said  note  the  sum  of  $201.66  with  interest 
from  October  9th,  1867,  at  ten  per  cent."  Demand  for  judg- 
ment in  the  usual  form. 

The  answer  of  the  defendant  denies  the  making  of  the  guar- 
anty in  the  form  stated  in  the  complaint,  but  admits  the  sale  and 
delivery  of  the  note  to  the  plaintiff,  and  the  signing,  by  making 
his  mark,  of  a  written  guaranty  endorsed  thereon.  It  further 
states  that  at  the  time  of  such  sale  and  transfer,  the  time  for 
the  payment  of  such  note  was  extended  by  agreement  between 
the  plaintiff  and  the  makers  of  the  note,  in  consideration  of  the 
payment  by  them  of  the  interest  thereon  to  that  date;  that  the 
agreement  between  the  plaintiff  and  defendant  was,  that  the 
defendant  should  guaranty  the  collection  of  the  note ;  that  when 
he  signed  the  guaranty  he  supposed  and  intended  the  same  to 
be  a  guaranty  of  the  collection  thereof  pursuant  to  such  agree- 
ment; and  that  "by  mistake  of  Arie  Banta,  the  person  who 
wrote  said  guaranty,  the  word  'payment'  if  written  by  liim 
therein,  was  used  instead  of  the  word  collection,  contrary  to 
said  agreement  and  the  intention  of  the  parties  thereto."  The 
defendant  denies  the  making  of  any  other  or  different  guaranty. 

The  answer  does  not  state  that  any  defense  therein  contained 
is  set  up  by  way  of  counterclaim,^  and  no  demand  is  therein 
made  for  affirmative  relief. 

The  complaint  and  answer  are  the  only  pleadings  in  the 
action. 

B  For  the  statutory  definition  of  a  counterclaim,  see  ante  p.  470. 
(9 


602  The  Answer.  [Chap.  V. 

On  the  trial,  the  plaintiff,  under  objection  by  the  defendant, 
which  the  court  overruled,  read  in  evidence  the  note  and  guar- 
anty, and  there  rested  his  case.  A  motion  by  the  defendant  for 
judgment  of  nonsuit  was  overuled,  and  the  defendant  offered 
himself  as  a  witness  in  his  own  behalf.  The  plaintiff  objected 
to  the  admission  of  any  evidence  on  the  part  of  the  defendant, 
under  his  answer,  relating  to  the  mistake  therein  alleged,  an.l 
the  court  sustained  the  objection.  The  defendant  offered  no 
other  evidence,  and  the  court  directed  the  jury  to  return  a 
verdict  for  the  plaintiff  for  the  amount  of  the  principal  and 
interest  due  on  the  note,  which  was  accordingly  done. 

A  motion  having  been  made  to  set  aside  such  verdict  and  for 
a  new  trial,  the  court,  during  the  same  term  at  which  such  ver- 
dict was  found,  stayed  all  proceedings  thereupon  until  the  fur- 
ther order  of  the  court,  and  ordered  further  ''that  the  equitable 
issue  formed  by  the  answer  of  the  defendant  in  said  action  be 
tried  before  this  court  at  a  general  or  special  term,  upon  the 
usual  notice."  Afterwards  at  a  special  term  of  the  court,  the 
plaintiff  having  duly  noticed  such  issue  for  trial,  and  tlie  cause 
being  upon  the  calendar,  the  defendant  moved  to  strike  it  from 
the  calendar,  and  objected  to  the  trial  thereof  without  a  jury; 
but  such  motion  was  denied  and  such  objection  overruled  by 
the  court.  The  defendant  thereupon  declined  to  give  any  evi- 
dence relating  to  such  alleged  mistake  or  such  equitable  issue; 
and  thereupon  the  court  vacated  the  former  order  staying  pro- 
ceedings upon  the  verdict,  and  gave  judgment  upon  such  verdict 
for  the  plaintiff. 

From  that  judgment  the  defendant  has  appealed  to  this  court. 
*    *    * 

The  next  point  made  by  the  counsel  for  defendant  is,  that  the 
answer  contains  a  counterclaim,  and  that  the  defendant  was 
entitled  to  judgment  thereon  for  want  of  a  reply,  by  virtue  of 
the  provisions  of  the  code  on  that  subject.    R.  S.,  ch.  125,  sec.  31. 

That  the  allegations  of  the  answer  in  respect  to  the  mistake  in 
the  contract  of  guaranty  constitute  the  proper  subject  matter 
of  a  counterclaim,  must  be  conceded,  because  those  allegations 
constitute  a  distinct  cause  of  action  in  favor  of  the  defendant 
and  against  the  plaintiff;  and  such  cause  of  action  is  clearh^ 
available  as  a  counterclaim  in  this  action,  if  pleaded  as  such. 

But  the  difficulty  is  that  it  is  not  so  pleaded.  There  is  nothing 
in  the  answer  from  which  we  can  infer  that  it  was  intended  to 


Sec.  2.]  New  Matter.  603 

interpose  the  defense  as  a  counterclaim.  The  liberal  rule  for 
the  construction  of  pleadings  before  mentioned  would  doubtless 
excuse  the  pleader  from  using  any  particular  form  of  words 
in  order  to  make  his  pleading  a  counterclaim ;  but  he  must  by 
some  reasonable  language  indicate  that  he  so  intends  it.  The 
usual  form  of  giving  such  intimation  is  by  inserting  therein  a 
prayer  for  relief,  or  a  statement  that  the  pleading  is  a  counter- 
claim. We  find  nothing  of  the  kind  in  this  answer,  and  the 
law  is  well  settled  that  in  such  case  the  pleading  cannot  be 
considered  a  counterclaim.  McConihe  v.  Hollister,  19  Wis.  269 ; 
Bates  V.  Rosekrans,  37  N.  Y.  409 ;  Clough  v.  Murray,  19  Abb. 
Pr.  R.  97;  Wright  v.  Delafield,  25  N.  Y.  266;  Burrall  v.  De 
Groot,  5  Duer  379. 

The  allegations  of  the  answer  being  stated  merely  as  a  defense 
and  'not  as  a  counterclaim,  no  reply  was  necessary.  R.  S., 
Chap.  125,  sec.  32. 

The  remaining  question  to  be  determined  is,  whether  the  court 
erred  in  excluding  all  evidence  on  the  part  of  the  defendant 
concerning  the  mistake  set  forth  in  the  answer,  from  the  con- 
sideration of  the  jury. 

Beyond  all  question  the  answer  in  this  respect  states  an 
equitable  cause  of  action  against  the  plaintifi'.  Had  the  de- 
fendant commenced  an  action^  against  the  plaintiff,  averring  the 
same  facts  and  demanding  judgment  that  the  contract  of  guar- 
anty be  reformed  in  accordance  with  the  alleged  contract  be- 
tween the  parties,  such  action  would  have  been  an  equitable  one, 
and  neither  party  would  have  been  entitled  to  a  jury  trial  as 
a  matter  of  right.  Clearly  the  nature  of  such  cause  of  action 
is  not  changed,  if,  instead  of  bringing  an  acticm  thereon,  the 
defendant  pleads  the  same  facts  as  a  defense  to  an  action 
brought  against  him  on  the  guaranty.  These  facts,  being 
pleaded  as  a  defense  and  not  as  a  counterclaim,  are  deemed  to 
be  denied  by  the  plaintiff,  without  a  reply,  and  thus  an  issue  is 
made  upon  them  by  operation  of  the  statute.  R.  S.  ch.  125, 
sec.  32.     Such  issue  is  necessarily  an  equitable  one. 

It  is  not  a  good  answer  to  these  views  to  say  that  the  code 
abolished  the  distinction  between  actions  at  law  and  suits  in 

6  An  action  for  reformation  may  the  instrument  as  written  is  not, 
be  barred  by  the  statute  of  limita-  Bradbury  v.  Higginson,  167  Cal. 
tions,   though   the   legal   action   on      553,    (1914). 


604  The  Answer.  [Chap.  V. 

equity,  and  that  therefore  this  defense  stands  on  the  same  foot- 
ing with  any  other  defense  in  a  civil  action.  For  there  are 
inherent  differences  between  actions  at  law  and  suits  in  equity, 
which  cannot  be  abolished,  and  which  are  constantly  recognized 
by  the  legislature  and  the  courts.  Wiggins  v.  Silverthorn,  10 
Wis.  492 ;  Mowry  v.  Hill,  11  Wis.  146 ;  Stillwell  v.  Kellogg,  14 
Wis.  461 ;  Truman  v.  McCollom,  20  Wis.  360. 

The  issue  thus  made  by  the  answer,  being  an  equitable  one, 
was  properly  triable  by  the  court,  and  there  was  no  error  in 
taking  an  assessment  of  damages  by  a  jury  before  such  issue  was 
tried.  Harrison  v.  The  Juneau  Bank,  17  Wis.  340.  It  is  said 
in  that  case  that  the  correct  practice  in  such  cases  is  to  try  the 
equitable  issue  first,  and  afterwards  the  legal  issue,  This  is 
doubtless  true  as  a  general  rule,  but  it  not  infrequently  happens 
at  the  circuit  that  it  becomes  desirable  to  dispose  of  the  legal 
issue  first,  in  order  to  avoid  delay,  and  for  the  convenience  of 
the  court.  The  order  in  which  the  issues  are  tried,  may,  I  think, 
be  left  to  the  discretion  of  the  circuit  judge.  In  this  case  no 
defense  was  interposed  except  the  alleged  mistake.  The  answer 
substantially  admits  the  signing  of  the  guaranty,  and  it  is 
doubtful  whether  an  assessment  of  damages  was  necessary.  The 
only  way  in  which  the  defendant  could  have  obtained  any  bene- 
fit under  his  answer,  was  to  proceed  to  the  trial  of  the  equitable 
issue,  and  there  establish  by  evidence  the  truth  of  its  averments. 
Had  he  proved  the  mistake  in  the  guaranty,  as  alleged,  doubtless 
the  court  would  have  required  the  plaintiff  to  amend  his  com- 
plaint to  correspond  with  the  contract  actually  made  by  the 
parties,  and,  in  default  of  making  such  amendment,  would  have 
dismissed  his  action. 

Clearly  it  was  not  competent  for  the  defendant  to  show  this 
alleged  mistake  by  oral  testimony  in  any  other  way.  The  writ- 
ten guaranty  is  presumed  to  express  the  real  contract  between 
the  parties;  and  in  an  action  upon  it,  evidence  to  show  that  an 
agreement  or  understanding  existed,  at  the  time  of  its  execution, 
which  changes  its  terms  or  controls  its  legal  effect,  is  inadmis- 
sible. Such  evidence  can  only  be  received  in  a  direct  proceeding 
to  reform  the  contract.  These  principles  are  elementary  and 
of  universal  application,  and  it  is  quite  unnecessary  to  cite 
authorities  in  support  of  them. 

The  circuit  court  treated  the  averments  of  the  answer  in  that 
behalf  as  equivalent  to  a  direct  proceeding  to  reform  the  con- 


Sec.  2.] 


New  Matter. 


605 


tract  of  ^laranty,  and  gave  the  defendant  an  opportunity,  in 
strict  accordance  with  the  rules  of  law  and  the  practice  of  the 
court,  to  try  the  issue  and  prove''  his  defense  if  he  could.  The 
defendant  refused  to  avail  himself  of  the  opportunity  thus 
given,  and  left  his  defense  entirely  unproved.  Under  these 
circumstances  the  court  could  do  no  less  than  give  judgment 
for  the  plaintiff  on  the  verdict. 

We  find  no  error  in  the  proceedings  and  rulings  in  the  circuit 
court,  and  are  of  the  opinion  that  the  judgment  should  be 
affirmed.* 

Judgment  affirmed. 


LOMBARD  V.  CO  WHAM. 

Supreme  Court  of  Wisconsin,  1874.    34  Wis.  486. 

This  action  below  was  brought  by  Lombard  to  recover  the  un- 
divided one-half  of  an  eighty  acre  lot  situated  in  the  county  of 
Fond  du  Lac.     The  complaint  is  the  usual  form  of  complaints 


7  As  to  the  amount  of  proof  nec- 
essary to  obtain  a  reformation  in 
equity,  see  Phillipine  Sugar  Co.  v. 
Phillipine  Islands,  247  U.  S.  385, 
(1915),  in  which  it  was  also  held 
that  a  cross-complaint  for  reforma- 
tion under  the  Phillipine  Code  so 
far  converted  the  case  into  one  in 
equity  as  to  make  it  reviewable 
on  appeal  instead  of  writ  of  error. 

8  See  Born  v.  Schrenkeisen,  110 
N.  Y.  55,  (1888),  treating  failure 
to  set  up  mistake  in  the  form  of 
a  counterclaim  for  reformation  as 
a  mere  formal  defect. 

In  Hauser  v.  Murray,  256  Mo. 
58,  (1913),  an  answer  setting  up 
an  "equitable  title",  without  any 
prayer  for  relief,  was  treated  as 
amounting  in  substance  to  a  coun- 
terclaim on  which  there  was  no 
right  to  a  trial  by  jury.  That 
mistake  is  not  available   as   a  de- 


fense under  the  equitable  defense 
statute  of  the  common  law  states 
see  Martin  v.  Smith,  102  Me.  27, 
(1906);  Nydegger  v.  Gitt,  125  Md. 
572,    (1915). 

But  see  Schlosser  v.  Nicholson, 
184  Ind.  283,  (1916),  allowing  mis- 
take as  a  defence  on  the  following 
theory:  "There  can  be  no  doubt 
that  equity  has  power  to  reform 
and  correct  written  instruments 
which  thus  embody  a  mistake  of 
fact  (Adams  v.  "Wheeler  (1890), 
122  Ind.  251,  23  N.  E.  760;  Remm 
V.  Landon  (1909),  43  Ind.  App.  91, 
86  N.  E.  973),  and  we  see  no 
reason  why  the  existence  of  such 
a  mistake  may  not  properly  be 
pleaded  by  way  of  estoppel  to  a 
complaint  which  seeks  to  take  ad- 
vantage thereof." 

Compare  earlier  case  of  Conger 
V,  Parker,  29  Ind.  380,   (1868). 


606  The  Answer.  .  [Chap.  V. 

in  actions  of  ejectment.  The  answer  is,  1st,  A  general  denial; 
2nd,  The  statute  of  limitations;  3rd,  An  estoppel.  The  Circuit 
Court  seems  to  have  held  that  the  special  answers  were  defective, 
and  that  no  testimony  was  admissible  on  behalf  of  the  defend- 
ant, except  such  as  was  admissible  under  the  general  denial 
alone. 

It  appears  that  the  land  in  controversy  was  purchased  of  the 
government,  in  1847,  by  one  Andrew  Meritt,  who  died  intestate 
and  seized  of  such  land,  in  1855,  leaving  his  two  sisters,  Polly  A. 
Little  and  Betsey  R.  Clark,  his  sole  heirs-at-law.  The  plaintiff 
claims  title  under  a  conveyance  from  Betsey  R.  Clark,  executed 
in  1870 ;  and  the  defendant  claims  title  under  a  conveyance 
executed  in  1856  by  the  administrator  of  the  estate  of  Andrew 
Meritt  to  one  Ackerson,  and  mesne  conveyances  from  the  latter 
to  the  defendant. 

The  estoppel  pleaded,  or  attempted  to  be,  is  to  the  effect  that 
the  purchase  money  paid  by  Ackerson  for  the  land  Avas  used  to 
pay  the  debts  of  the  intestate  chargeable  upon  the  estate,  and,  a 
surplus  remaining  after  paying  such  debts,  the  same  was  dis- 
tributed to  the  heirs;  and  that  Mrs.  Clark,  wdth  full  knowledge 
of  all  the  facts,  received  her  portion  of  the  surplus  and  retains 
the  same;  and  further,  that  the  plaintiff  is  chargeable  with  no- 
tice of  the  foregoing  facts  when  he  took  a  conveyance  of  the  land 
from  Mrs.  Clark. 

The  court  (under  objection)  admitted  testimony  tending  to 
show  that  the  plaintiff  procured  such  conveyance  by  fraudulent- 
ly representing  to  Mrs.  Clark  that  he  desired  it  for  the  benefit  of 
the  purchaser  at  the  administrator's  sale,  and  to  cure  certain 
defects  in  his  title ;  and  that  she  executed  the  same  for  a  nominal 
consideration,  and  for  the  sole  purpose  of  confirming  and  ratify- 
ing the  title  of  such  purchaser.  These  facts  are  not  stated  in 
the  answer. 

The  following  instruction  was  asked  on  behalf  of  the  plaintiff, 
and  refused :  "In  this  action,  under  the  pleadings,  you  cannot 
consider  any  equities  of  the  defendant.  The  legal  title  must 
prevail  over  any  equitable  claim  or  title. ' '  The  court  instructed 
the  jury  as  fallows:  "There  is  in  this  action  and  upon  this  tes- 
timony but  one  question  for  your  determination,  and  that  is  the 
question  whether  the  deed  under  which  the  plaintiff  claims  from 
Betsey  R.  Clark,  was  fraudulently  procured  by  the  plaintiff  or 
his  agent.    If  it  was  procured  by  fraudulent  representations  that 


Sec.  2.]  New  Matter.  607 

the  plaintiff  or  his  agent  was  obtaining  this  deed  for  the  benefit 
and  for  the  purpose  of  supporting  the  title  of  the  grantee  in  the 
administrator's  deed  and  those  holding  under  him,  and  you  be- 
lieve that  to  be  true  from  the  testimony  in  this  case,  that  deed 
is  void,  the  plaintiff  has  no  title,  and  the  defendant  is  entitled 
to  your  verdict." 

The  jury  returned  a  verdict  for  the  defendant;  and  judg- 
ment pursuant  thereto  was  duly  entered  and  perfected  against 
the  plaintiff;  who  brought  the  case  to  this  court  by  writ  of 
error.    *    *    * 

Lyon,  J.  It  seems  to  be  conceded  that  the  proceedings  in  the 
probate  court  preliminary  to  the  sale  and  conveyance  of  the  land 
in  controversy,  by  the  administrator  of  the  estate  of  Meritt  to 
the  grantor  of  the  defendant,  are  so  defective  and  irregular  that 
they  will  not  support  a  conveyance,  and  hence,  that  the  admin- 
istrator's deed  is  void.  If  that  deed  is  void,  the  legal  title  to  an 
undivided  half  of  the  land  was  in  Mrs.  Clark  until  she  conveyed 
to  the  plaintiff  in  1870.  The  circuit  court  held  that  if  the  plain- 
tiff or  his  agent  procured  the  conveyance  from  Mrs.  Clark  by 
fraudulently  representing  to  her  that  he  desired  it  for  the  bene- 
fit of  the  grantee  in  the  administrator's  deed,  or  those  claiming 
under  such  grantee,  and  if  I\Irs.  Clark  executed  the  conveyance 
with  the  intention,  and  for  the  purpose  of  ratifying  and  confirm- 
ing the  title  of  those  holding  under  the  administrator's  deed, 
the  conveyance  to  the  plaintiff  is  void,  and  the  title  still  remains 
in  Mrs.  Clark.  We  think  that  this  is  an  error,  and  that  at  least 
the  legal  title  passed  to  the  plaintiff  by  virtue  of  such  con- 
veyance. 

But,  assuming  that  the  plaintiff  obtained  his  title  by  the  fraud- 
ulent means  just  mentioned,  is  the  defendant  affected  by  that 
fact,  and  can  he  claim  an  equitable  interest  in  the  land  in  con- 
troversy by  reason  of  the  alleged  fraud  ?  We  think  this  question 
has  been  determined  by  this  court  in  the  case  of  Onson  v.  Cown, 
22  Wis.  329.  That,  also,  was  an  action  of  ejectment.  The  de- 
fense was  that  the  land  in  controversy  was  school  land;  that 
the  defendant  once  held  a  certificate  therefor  from  the  state, 
which  became  forfeited  for  nonpayment  of  interest,  and  the 
land  was  resold  to  one  Keyes;  that  Larson,  the  grantor  of  the 
plaintiff,  applied  to  Keyes  to  purchase  the  land,  and  stated  that 
he  desired  to  do  so  for  the  benefit  of  the  defendant;  and  that 
thereupon  Keyes  assigned  his  certificate  to  Lai-son,  who  paid  for 


608  The  Answer.  [Chap.  V. 

the  land  and  took  a  patent  therefor  from  the  state.  There  had 
been  no  previous  arrangement  between  Larson  and  the  defend- 
ant concerning  the  land.  The  answer  contained  a  counter-claim, 
and  demanded  that  the  plaintiff  be  adjudged  to  convey  the  land 
to  the  defendant.  This  was  held  to  be  a  good  defense  and  coun- 
ter-claim ;  and  the  facts  therein  stated  having  been  proved,  the 
plaintiff  (who  had  notice  of  such  facts  when  he  took  his  convey- 
ance) was  compelled  to  convey  the  land,  to  which  his  grantor 
had  thus  fraudulently  obtained  title,  to  the  defendant.  There 
were  some  equities  to  be  adjusted  in  that  case  which  do  not  exist 
here.  The  principle  applied  in  that  case  is  thus  stated  in  Perry 
on  Trusts,  §  172 :  "  If  a  purchaser  at  auction  or  otherwise  rep- 
resents that  he  is  purchasing  or  bidding  for  some  other  person, 
as  for  the  debtor  in  a  sale  under  an  execution,  or  for  the  mort- 
gagor in  a  sale  under  a  foreclosure,  or  for  the  family  under  an 
executor's  or  administrator's  sale,  and  competition  is  thus  pre- 
vented, and  the  sale  is  made  on  his  own  terms,  equity  will  decree 
that  such  person  shall  be  a  trustee  for  the  person  for  whom  he 
represented  that  he  was  acting." 

It  will  be  observed  that  conveyances  thus  obtained  are  not 
declared  void,  but  are  held  to  pass  the  legal  estate  to  the  grantee, 
but  subject,  in  equity,  to  a  trust  in  favor  of  him  for  whom  the 
grantor  professed  to  act,  coextensive  with  his  profession  or  rep- 
resentation in  that  behalf. 

But  it  may  be  argued  that  it  is  quite  immaterial  in  this  case 
whether  the  conveyance  to  the  plaintiff  be  held  void,  or  whether 
it  be  held  valid  to  pass  the  legal  title,  with  a  trust  engrafted 
upon  it  in  favor  of  the  defendant,  inasmuch  as,  in  either  case, 
the  plaintiff  must  fail  in  his  action;  and  hence  that  the  judg- 
ment should  not  be  reversed  because  the  court  erred  in  the  in- 
struction that  the  conveyance  was  void  if  obtained  by  means  of 
fraudulent  representations  stated  in  the  charge.  A  little  reflec- 
tion will  satisfy  the  mind  that  the  argument  is  unsound.  The 
error  is  not  immaterial.  Were  the  conveyance  to  plaintiff  void 
in  the  contingency  mentioned,  the  question  of  the  existence  of 
such  contingency  would  be  one  of  fact  for  the  jury  to  determine, 
and  would  doubtless  be  available  to  the  defendant,  as  a  defense, 
under  the  pleadings.  To  prove  that  the  conveyance  under  which 
the  plaintiff  claims  title  is  void,  is  merely  one  method  of  proving 
that  the  title  to  the  land  in  controversy  is  in  some  third  party. 


Sec.  2.] 


New  Matter. 


609 


This  is  strictly  a  legal  defense,  is  admissible  under  the  general 
denial,  and,  when  proved,  defeats  the  action. 

But  the  conveyance  being  a  valid  one  to  pass  the  legal  title 
to  the  plaintiff,  the  defense  that  it  enures  to  the  benefit  of  the 
defendant  is  purely  an  equitable  defense  in  that,  if  established, 
it  results  in  the  declaration  and  enforcement  of  a  trust,  which  is 
a  matter  cognzable  in  courts  of  equity  alone.  The  issue  upon 
such  a  defense,  if  affirmative  relief  is  demanded  by  the  defend- 
ant, is  triable  by  the  court,  unless  the  court  shall  order  the  same 
to  be  tried  by  a  jury,  as  it  may  order  questions  of  fact  to  be  so 
tried  in  other  equity  cases,  in  its  discretion.^     Tay.  Stat.  1494, 


9  There  is  much  confusion  in  tho 
cases  as  to  the  proper  mode  of 
trial  where  an  equitable  defence 
is  set  up.  In  a  number  of  cases 
it  is  asserted  broadly  that  an  equi- 
table defence  is  to  be  tried  by 
the  court,  while  others  appear  to 
restrict  that  method  to  cases  where 
the  equitable  matter  is  set  up  in 
the  form  of  a  counterclaim  or 
cross-action.  The  following  distinc- 
tion was  taken  in  Gill  v.  Pelkey, 
54  Ohio  St.  348,  (1896): 

"It  may  be  quite  true  that  an 
equitable  defense  merely,  that  is, 
one  which  sets  forth  some  equita- 
ble considerations  for  the  sole  pur- 
pose of  resisting  the  plaintiff's  de- 
mands, without  asking  any  affirma- 
tive action  of  the  court  whatever, 
will  not  affect  the  mode  of  trial, 
although  it  would  have  done  so  if 
the  party  had  invoked  some  affir- 
mative relief.  The  difference  be« 
tween  them  being  that  the  first  is 
simply  a  defense  to  the  cause  of 
action  stated  in  the  petition,  while 
the  other  is  a  cross  demand  con- 
stituting a  cause  of  action  in  it- 
self, on  which  a  separate  action 
might  have  been  maintained.  The 
former  being  merely  a  defense, 
cannot  draw  to  itself  a  mode  of 
trial  different  from  that  prescribed 
for  the  cause   of  action  to   which 


it  relates.  The  latter  being  a  dis- 
tinct cause  of  action,  is  of  equal 
dignity  with  the  one  set  forth  in 
the  petition,  and  therefore  equally 
entitled  to  its  appropriate  method 
of  trial. 

This  view  of  the  matter  i^-ill 
reconcile  Smith  v.  Anderson,  supra, 
with  Massie  v.  Stradfsrd,  17  Ohio 
St.,  596;  Taylor  v.  Leith,  26  Ohio 
St.,  428;  Buckner  v.  Mear,  lb.,  514, 
and  the  later  decisions  of  this 
court  upon  the  subject.  Sheeful 
V.  Murty,  30  Ohio  St.  50;  Dods- 
worth  V.  Hopple,  33  Ohio  St.  16; 
Eankin  v.  Hannan,  Adm'r,  37  Ohio 
St.  113.  In  Buckner  v.  Mear  and 
Dodsworth  v.  Hopple,  the  author- 
ity of  Smith  V.  Anderson  is  ex- 
pressly limited  to  instances  where 
the  answer  sets  forth  an  equitable 
defense  merely  ■\\'ithout  asking  af- 
firmative relief." 

In  Missouri  the  same  distinction 
has  been  taken,  that  an  equitable 
defense  without  a  prayer  for  affir- 
mative relief  did  not  make  the 
case  reviewable  as  in  equity,  Kerst- 
ner  v.  Vorweg,  130  Mo.  196,  (1895); 
but  see  Hauser  v.  Murray,  256  Mo. 
58,  (1913).  In  New  York  it  ap- 
pears to  be  fairly  well  settled  that 
all  of  the  issues  are  to  be  tried 
by  jury,  except  where  affirmative 
relief   is    necessary,    Lowenthal    v. 


610  The  Answer.  [Chap.  V. 

§  6.  But  in  such  case  the  verdict  does  not  have  the  same  force 
and  effect  as  verdicts  in  actions  at  law.  It  is  not  binding  upon 
the  judgment  of  the  court,  and  if  unsatisfactory  and  against  the 
weight  of  the  testimony,  the  court  may  set  it  aside  and  order  a 
new  trial  of  the  issue,  or  may  vacate  the  order  awarding  a  jury 
trial,  and  decide  the  issue  without  intervention  of  a  jury.  Jack- 
man's  Appeal,  26  Wis.  104.  That  the  court  should  retain  this 
plenary  control  over  verdicts  in  equity  cases  where  jury  trials 
are  awarded,  is  a  material  and  valuable  right  of  the  parties. 
Hence,  an  error  which  results  in  depriving  the  court  of  that 
power,  must  necessarily  be  a  material  error. 

The  counsel  for  the  defendant,  evidently  perceiving  the  diffi- 
culty, argue  in  their  brief  that  in  cases  of  fraud,  equity  and  law 
have  concurrent  jurisdiction.  In  some  cases  of  fraud  this  is 
true,  but  it  is  not  true  as  a  general  proposition.  We  apprehend 
that  the  learned  counsel  would  be  at  a  loss  how  to  proceed,  in 
order  to  procure  in  an  action  at  law  a  declaration  and  enforce- 
ment of  the  trust  which  may  result  to  their  client  by  reason  of 
the  alleged  fraud  of  the  plaintiff  in  procuring  his  conveyance. 

The  defense,  being  an  equitable  one,  to  be  available  in  an 
action  of  ejectment,  must  be  set  up  in  the  answer,  and  be  accom- 
panied by  a  demand  for  such  relief  as  the  defendant  supposes 
himself  entitled  to.  Tay.  Stat.  1667,  §  7  (R.  S.,  Ch.  141,  sec.  7.) 
A  mere  equitable  defense  is  not  sufficient.  There  must  be  a 
counter-claim  also.  The  statute  was  doubtless  intended  to  avoid 
the  difficulty  suggested  by  Hand,  J.,  in  Dewey  v.  Hoag,  15  Barb. 
365.  He  says:  "I  do  not  understand  there  is  any  equitable  de- 
fense, simply  as  a  defense,  in  an  action  of  ejectment.  The  effect 
of  that  might  be  to  keep  the  legal  title  and  possession  forever 
separate."     (p.  369.) 

The  court  erred,  therefore,  in  admitting,  under  the  pleadings, 
testimony  tending  to  show  that  the  plaintiff  procured  his  con- 
veyance by  representing  to  Mrs.  Clark,  his  grantor,  that  he  de- 
sired it  for  the  benefit  of  the  purchaser  at  the  administrator's 

Haines,  160  App.  Div.  503,  (1904) ;  where  affirmative  relief  is  unneees- 

but  the   failure   to   ask  affirmative  sary,   Dale  v.   Hunneman,   12    Neb. 

relief  may  be  a  mere  informality,  221,    (1881). 

Born  V.  Sehrenkeisen,  110  N.  Y.  55.  For  a  collection  of  cases  on  the 

In  Nebraska  it  is  said  that  iu  eject-  mode   of   trial,   see   Nolan   v.   Pac. 

ment    equitable    defences    may    be  Warehouse  Co.,  67  Wash.  173,  Ann. 

proved    under    a    general    denial,  Cas.  1913D,  167. 


Sec.  2.]  New  Matter.  611 

sale,  or  those  claiming  under  him.  There  must  be  a  new  trial; 
but,  under  the  circumstances,  the  defendant  should  be  per- 
mitted, on  such  terms  as  the  circuit  court  shall  deem  just,  to 
amend  his  answer  so  as  to  interpose  such  equitable  defense  and 
counter-claim. 

The  case  of  Kent  v.  Agard,  24  Wis.  378,  does  not  conflict  with 
the  foregoing  views.  It  was  there  held  that  in  an  action  of 
ejectment  a  party  may  show,  M'ithout  specially  pleading  the  fact, 
that  a  conveyance,  absolute  upon  its  face,  is  a  mortgage,  and 
that  the  debt  for  which  it  was  given  to  secure  has  been  paid. 
There  is  no  doubt  of  the  correctness  of  that  decision,  and  it  is 
perfectly  clear  that  it  is  not  applicable  to  this  case. 

Judgment  reversed,  and  a  new  trial  awarded. 


LOCKE  V.  MOULTON. 
Supreme  Court  of  California,  1895.    108  Cal.  49. 

Vanclief,  C.  Action  of  ejectment  to  recover  possession  of  a 
half  section  of  land.  The  complaint  is  in  the  most  general  form, 
alleging,  in  substance,  that  plaintiff  owns,  and  is  entitled  to  the 
possession  of,  the  demanded  premises,  and  that  the  defendants 
are  in  possession  and  wrongfully  withhold  it  from  the  plaintiff. 

In  their  answer  the  defendants  deny  that  plaintiff  ever  owned 
the  land,  or  that  he  was  entitled  to  the  possession  thereof  at  the 
time  of  the  commencement  of  the  action;  and,  as  a  further  an- 
swer, allege  that  on  October  2,  1885,  the  defendant  Moulton, 
who  was  then  the  owner  and  in  possession  of  the  land,  executed 
to  plaintiff  a  bargain  and  sale  deed  thereof,  absolute  in  form, 
but  which  was  intended  by  the  parties  thereto  to  operate  only 
as  a  mortgage  to  secure  payment  to  plaintiff  of  a  debt  of  six 
thousand  one  hundred  and  twenty-seven  dollars  and  fifty  cents 
with  interest;  and  that  it  was  understood  and  expressly  agreed 
by  the  parties  at  the  time  the  deed  was  executed,  that  upon  pay- 
ment of  the  said  debt  the  plaintiff  would  reconvey  the  land  to 
Moulton.  As  a  further  answer  the  defendants  alleged  adverse 
possession  for  a  period  of  five  years,  etc. 

The  answer  closed  with  the  following  prayer:  "Wherefore, 
defendants  pray  that  plaintiff  take  nothing  by  reason  of  this 


612  The  Answer.  [Chap.  V. 

action ;  that  it  be  adjudged  that  plaintiff  is  not  the  owner  of,  or 
entitled  to  the  possession  of,  the  real  property  described  in  the 
complaint,  that  it  be  decreed  that  the  instrument  in  writing 
herein  described  was  and  is  a  mortgage,  and  that  the  defendants 
have  judgment  for  their  costs." 

A  former  judgment  in  favor  of  the  plaintiff  in  this  case  was 
reversed  by  this  court  and  a  new  trial  granted.  (Locke  v.  Moul- 
ton,  96  Cal.  33.)  After  the  remittitur  was  filed  in  the  court 
below,  to  wit,  on  the  first  Monday  in  October,  1892,  the  case  was 
called  by  the  lower  court  for  the  purpose  of  setting  a  day  for 
the  new  trial  thereof,  when  the  attorneys  for  defendants  de- 
manded a  trial  by  jury,  whereupon  the  court  stated  "that  the 
defendants  could  have  a  jury  on  the  common-law  part  of  the 
action,  but  the  court  itself  would  try  the  equity  part  of  the 
case,"  to  wit,  the  issue  as  to  whether  the  deed  was  intended  to 
operate  merely  as  a  security  for  a  debt.  On  December  1,  1892, 
the  case  was  called  for  trial,  when  the  defendants  again  de- 
manded a  jury  trial  upon  all  the  issues  in  the  case.  The  court 
again  refused  a  jury  trial  on  the  issue  as  to  whether  the  deed 
was  intended  to  be  a  mortgage,  and  proceeded  to  try  that  issue 
alone.  The  result  of  such  trial  was  a  finding  by  the  court  that  the 
deed  "was  not  executed  or  delivered  as  a  mortgage,  and  was  not 
a  mortgage  of  any  kind,  and  was  not  to  secure  the  payment  of 
any  money  whatever."  And,  as  a  conclusion  of  law,  found 
"that  said  deed  was  not  a  mortgage,  but  that  it  was  a  convey- 
ance and  grant  of  the  title  to  said  real  estate  from  defendant 
Moulton  to  plaintiff."  These  findings  were  filed  on  December 
27,  1892,  and  disposed  of  the  only  material  issue  except  that  as 
to  adverse  possession,  upon  which,  it  appears  from  evidence 
given  on  the  issue  tried,  the  defendants  could  not  hope  for  a 
verdict  in  their  favor. 

Defendants  moved  for  a  new  trial  on  all  the  grounds  allow- 
able under  section  657  of  the  Code  of  Civil  Procedure,  presented 
by  a  bill  of  exceptions.  This  motion  was  denied,  and  the  de- 
fendants appeal  from  the  order  denying  it. 

The  only  ground  upon  which  appellants  claim  a  reversal  are : 
1.  Insufficiency  of  the  evidence  to  justify  the  decision;  and  2. 
That  the  court  erred  in  refusing  a  trial  of  all  the  issues  by  a 

As  to  the  first  of  these  grounds,  I  think  the  evidence  was  sub- 
stantially conflicting  to  a  degree  which  precludes  a  review  of 


Sec.  2.]  New  Matter.  613 

it  by  this  court.  But  I  think  the  court  erred  in  denying  a  jury 
trial  of  the  whole  case. 

The  affirmative  allegations  in  the  answer,  to  the  effect  that  the 
deed  was  intended  as  more  security  for  a  debt,  do  not  constitute 
an  equitable^"  defense  in  the  proper  sense  of  those  terms,  since 
they  could  have  been  proved  under  the  general  denials.  (Smith 
V.  Smith,  80  Cal.  329;  Locke  v.  Moulton,  supra.)  They  added 
nothing  to  the  denials  of  plaintiff's  alleged  title.  The  defend- 
ants unnecessarily  anticipated  that  plaintiff  would  rely  upon 
the  deed  as  evidence  of  his  title,  and  improperly  alleged  the 
evidence  by  which  they  proposed  to  show  that  the  deed  did  not 
convey  the  title.  Of  themselves,  these  affirmative  allegations 
constituted  neither  a  legal  nor  equitable  defense  to  the  action, 
and  might  have  been  stricken  from  the  answer  without  impair- 
ing its  legal  effect. 

But  counsel  for  respondent  contend  that  the  character  of  the 
defenses  is  to  be  determined  only  by  the  prayer  of  the  answer ; 
and  since  defendants,  in  addition  to  their  prayer  "that  plaintiff 
take  nothing  by  the  action,"  asked  the  court  to  adjudge  that 
plaintiff  is  not  the  owner  of  the  land,  and  that  the  deed  is  a 
mortgage,  this  affirmative  relief  could  be  administered  only  by 
a  court  of  equity,  and  therefore  it  was  Avithin  the  discretionary 
power  of  the  court  to  refuse  to  submit  to  a  jury  that  part  of 
the  case  upon  which  such  equitable  relief  was  to  be  based. 

In  the  first  place  it  is  manifest  that  there  is  no  basis  in  the 
answer  for  any  affirmative  relief  of  any  kind,  and,  in  the  second 
place,  even  if  the  court  should  affirmatively  adjudge,  on  the 
pleadings  in  this  case,  that  the  deed  is  a  mortgage,  and  that 
plaintiff  has  not  title,  such  judgment  would  add  nothing  in  effect 
to  the  simple  judgment  "that  plaintiff  take  nothing  by  the 
action."^ 

The  only  authorities  cited  to  this  point  by  counsel  for  re- 


10  At  an  earlier  period  this  was  affirmative  action  was  necessary  to 

treated  as  an  equitable  defense  in  convert  such  an  instrument  into  a 

New  York,  Despard  v.  Walbridge,  mortgage. 

15  N.   T.   374,    (1857),   and   appar-  1  And   so   in   Guaranteed   Invest- 

ently  in  Wisconsin;   for  its  evolu-  meut    Co.   v.   The    Copper   Co.,   156 

tion  into   a  legal   defence   in  Wis-  Wis.   173,    (1914)    where   a  defend- 

consin,    see    Dobbs    v.   Kellogg,    53  ant   in   ejectment    set    up   title   by 

Wis.  448,   (1881).     Compare  Reilly  adverse    possession    and    prayed    a 

v.  Cullen,  159  Mo.  322,  (1900)  that  decree  establishing  his  title. 


614  The  Answer.  [Chap.  V. 

spondent  are  People  v.  Mier,  24  Cal.  71,  Arrington  v.  Liscom, 
34  Cal.  375,  94  Am.  Dec.  722,  and  Nevada  etc.  Co.  v.  Kidd,  37 
Cal.  304 ;  but  that  none  of  these  is  in  point  for  respondent  seems 
so  obvious  that  I  think  it  needless  to  point  out  the  distinctions. 
I  think  the  order  should  be  reversed  and  a  new  trial  granted. 

Judgment  reversed. 


CHICAGO  &  NORTHWESTERN  RY.  CO.  v.  McKEIGUE. 

Supreme  Court  of  Wisconsin,  1906.    126  Wis.  574. 

WiNSLOW,  J.  This  is  an  action  in  equity  brought  to  restrain 
the  prosecution  of  an  action  at  law  theretofore  brought  by  the 
defendant  McKeigue  as  administator  against  the  plaintiff.  It 
appears  by  the  complaint,  in  brief,  that  one  Broderick  was  em- 
ployed by  the  plaintiff  as  switchman,  and  on  the  16th  day  of 
July,  1904,  was  so  injured  in  course  of  his  employment  that  he 
died  about  three  hours  later  intestate,  leaving  no  widow,  de- 
scendents,  or  ancestors  surviving,  but  only  his  sister,  the  defend- 
ant Johanna  Murphy,  his  sole  heir  at  law;  that  Johanna 
Murphy  thereafter  claimed  damages  of  the  plaintiff  on  account 
of  Broderick 's  injuries;  that  said  claim  was  afterwards  and  in 
the  month  of  August,  1904,  compromised  and  settled  by  the 
payment  to  said  Johanna  by  plaintiff  of  $1,000 ;  that  said  Jo- 
hanna thereupon  executed  and  delivered  a  written  release  of 
all  claims  resulting  from  said  injury  and  death  and  agreed  to 
save  and  keep  the  plaintiff  harmless  from  all  claims  against  it 
by  heirs  at  law  or  personal  representatives  of  Broderick;  that 
the  defendant  McKeigue  was  appointed  administrator  of  the 
estate  of  Broderick  in  September,  1904,  and  that  the  time  fixed 
for  presentation  of  claims  against  said  estate  has  fully  expired 
and  that  but  one  claim  was  presented  and  allowed ;  that  the 
property  of  the  estate  in  the  hands  of  the  administrator  is  large- 
ly in  excess  of  the  amount  of  said  claim,  and  that  there  are  no 
other  creditors;  that  in  October,  1904,  said  McKeigue,  as  ad- 
ministrator, commenced  an  action  against  the  plaintiff  to  re- 
cover damages  for  the  pain  and  injuries  suffered  by  Broderick 
in  his  lifetime ;  and  that  if  a  recover}^  is  had  in  said  action  the 
amount  thereof  will  be  received  by  said  Johanna  Murphy  as  sole 


Sec.  2.]  New  Matter.  615 

heir  at  law  of  Broderick,  thereby  nullifying  the  said  compromise 
and  satisfaction.  Upon  these  allegations  the  plaintiff  prayed 
judgment  that  the  prosecution  of  the  action  at  law  be  perpetual- 
ly enjoined.  Separate  demurrers  to  this  complaint  were  sus- 
tained, and  the  plaintiff  appeals. 

The  appellant  claims  that  the  allegations  of  the  complaint 
present  a  case  where  it  appears  that  a  trustee  is  prosecuting  an 
action  at  law  upon  a  claim  which  has  been  settled  and  com- 
promised by  the  sole  beneficiary  (who  is  sui  juris),  and  that  a 
court  of  equity  will  interfere  to  prevent  the  accomplishment  of 
such  an  injustice.  Granting  this  premise,  the  question  is 
whether  the  plaintiff  has  not  an  adequate  and  complete  remedy 
by  equitable  defense'*  in  the  action  at  law.  The  plaintiff  claims, 
in  substance,  that  this  question  must  be  answered  in  the  neg- 
ative for  the  reason  that  the  facts  must  be  presented  by  vray  of 
equitable  counterclaim,  and  to  that  counterclaim  Johanna  I\Iur- 
phy  would  be  a  necessary  party,  and  as  she  is  not  a  party  to 
the  action  at  law  the  counterclaim  would  not  be  well  pleaded 
on  account  of  defect  of  parties,  or  at  least  would  not  be  as  ade- 
quate and  effective  as  the  separate  action  in  equity.  The  con- 
tention practically  is  that  there  is  no  such  thing  as  an  equitable 
defense;  but  that  facts  which  in  equity  would  defeat  the  plain- 
tiff's claim  at  law  must  always  be  pleaded  as  a  counterclaim,  if 
pleaded  at  all  in  the  action  at  law.  We  do  not  understand  this 
to  be  the  law.  The  Code  recognizes  equitable  defenses  as  well 
as  equitable  counterclaims  when  it  provides  that  the  defendant 
may  "set  forth  by  answer  as  many  defenses  and  counterclaims 
as  he  may  have,  whether  they  be  such  as  were  formerly  denom- 
inated legal  or  equitable,  or  both."  Stats.  1898,  sec.  2657.  It 
seems  to  be  true  that  there  are  decisions  to  the  effect  that  a  de- 
fendant cannot  plead  facts  which  in  equity  would  defeat  the 
plaintiff's  cause  of  action  at  law,  except  by  way  of  counterclaim 
demanding  affirmative  relief.  Pomeroy,  Code  Rem.  (4th  Ed.) 
§  29.  This,  however,  is  not  the  approved  doctrine,  nor  is  it  a 
logical  doctrine.  The  true  and  logical  rule  doubtless  is  that 
where  facts  are  relied  on  which  in  equity  simply  defeat  the 

2  See   Haire    v.  Baker,   5    N.   T.  does  not  preclude  the  defendant  in 

357,   (1851),  to  the  effect  that  the  the     legal     action     from     bringing 

fact,  that  certain  matters,  such  as  an    independent    equitable     action 

fraud  and  mistake,   may  be  avail-  against  the  plaintiff  for  affirmative 

able  by  way  of  equitable  defence,  relief  against  the  legal  claim. 


616  The  Answer.  [Chap,  V. 

plaintiff's  cause  of  action  and  go  no  further,  they  may  he  set 
up  by  equitable  defense,  just  as  facts  which  at  law  go  simply  to 
defeat  the  plaintiff's  cause  of  action  may  be  set  up  by  legal  de- 
fense, but  in  those  cases  where  the  action  at  law  can  only  be 
defeated  by  virtue  of  an  affirmative  judgment  by  a  court  of 
equity,  such  for  instance  as  the  reformation  of  a  contract  sued 
on  at  law,  the  equitable  defense  must  be  made  by  way  of  coun- 
terclaim. In  a  word,  facts  which  if  true  simply  defeat  the  plain- 
tiff's action  may  be  set  up  as  a  defense  alone,  but  facts  which 
call  for  affirmative  relief  in  favor  of  the  defendant  before  the 
plaintiff's  action  can  be  defeated  must  be  set  up  by  counterclaim. 
Bliss,  Code  PI.  (3d  ed.)  §§  347,  348,  349;  Pomeroy,  Code  Rem. 
(4th  ed.)  §§  90,  91,  92;  Baylies,  Code  PL  &  Pr.  (2d  ed.)  ch.  11, 
§  11.    See  also  Pennoyer  v.  Allen,  50  Wis.  308,  6  N.  W.  887. 

Applying  this  rule  to  the  complaint  before  us,  it  is  very  evi- 
dent that  the  plaintiff  has  a  complete  remedy  by  equitable  de- 
fense in  the  action  at  law.^  The  object  of  the  present  action  is 
simply  to  defeat  the  plaintiff's  action  at  law.  No  affirmative 
relief  to  the  defendant  is  necessary  to  accomplish  that  object. 
The  only  result  desired  or  necessary  in  this  action  is  to  prevent 
any  judgment  against  the  railroad  company  in  the  action  at  law. 
That  may  be  accomplished  by  defense  in  the  legal  action 
brought  by  the  administrator  alone  as  well  as  by  the  prosecu- 
tion of  this  equitable  action  to  which  Johanna  is  a  party,  for 
Johanna  has  no  right  of  action  herself.  Hence  the  demurrers 
were  properly  sustained.  Pennoyer  v.  Allen,  supra.  It  may 
properly  be  noted  before  leaving  the  subject  that  there  is  an 
exception  to  the  rules  above  stated,  well  settled  in  this  state. 
In  actions  of  ejectment  a  defense  which  is  purely  equitable  and 
would  not  be  available  at  law  must  be  pleaded  by  way  of  coun- 
terclaim. The  reason  of  this  rule  is  that  an  equitable  defense 
concedes  the  legal  title  to  be  in  the  plaintiff,  so  in  order  to  bring 

3  Quaere  as  to  how  the  issues  relies  on  fraud  to  avoid  the  re- 
arising  on  this  equitable  defence  lease,  which  in  Wisconsin  is  ap- 
should  be  tried?  Will  it  be  treated  parently  sanction  at  law,  Whet- 
as  in  effect,  though  not  in  form,  stone  v.  Beloit  Straw  Board  Co., 
a  cross-action,  triable  by  the  court  76  Wis.  613,  ante  p.  33,  the  jury 
as  in  Gunn  v.  Madigan,  ante.  p.  may  have  quite  a  complicated  prob- 
600?     Or  will   it   be   treated   as   a  lem. 

mere  defence,  triable  by  jury  along  For  some  comments  on  the  sub- 

with  the  other  issues  in  the  case?  ject  of  equitable  defences.     See  18 

In  the  latter  case,  if  the  plaintiff  Michigan  Law  Eeview,  717, 


Sec.  2,]  New  Matter.  617 

the  title  and  possession  together  affirmative  relief  must  be  sought 
by  the  defendant,  and  hence  the  ejectment  statute  requires  that 
in  case  of  an  equitable  defense  the  answer  shall  contain  a  de- 
mand for  such  judgment  as  the  defendant  claims,  i.  e.  must  be 
framed  as  a  counterclaim.  Stats.  1898,  sec.  3078 ;  Lombard  v. 
Cowham,  34  Wis.  486 ;  Du  Pont  v.  Davis,  35  Wis.  631 ;  Lawe 
V.  Hyde,  39  Wis.  345 ;  Dobbs  v.  Kellogg,  53  Wis.  448 ;  10  N.  W. 
623 ;  Appelton  Mfg.  Co.  v.  Fox  River  P.  Co.,  Ill  Wis.  465,  87 
N.  W.  453.  This  rule,  however,  is  peculiar  to  ejectment  actions 
and  does  not  affect  the  rule  above  stated  with  reference  to  ac- 
tions generally.  Mr.  Pomeroy,  in  his  work  on  Code  Remedies 
(4th  ed.),  at  sec.  29  seems  to  have  thought  that  the  rule  laid 
down  in  these  cases  applied  to  all  actions ;  but  this  is  plainly  an 
erroneous  idea. 

Orders  affirmed. 


McISAAC  V.  McMURRAY. 
Supreme  Court  of  New  Hampshire,  1915.    77  N.  H.  466. 

Case  for  personal  injuries  alleged  to  have  been  caused  by  the 
negligence  of  the  defendant  in  driving  his  automobile  upon  the 
plaintiff,  who  was  riding  a  bicycle.    *    *    * 

The  defendant  pleaded  the  general  issue,  with  a  brief  state- 
ment setting  up  a  release  of  the  plaintiff's  cause  of  ac- 
tion.   *    *    * 

The  plaintiff  filed  an  answer  to  defendant's  brief  statement, 
alleging  in  substance  that  the  release  is  fraudulent,  was  made 
under  a  mutual  mistake  of  fact,  and  is  void ;  that  the  physicians 
for  both  parties  assured  the  plaintiff  previous  to  the  date  of  the 
release  that  his  injuries  were  not  serious,  consisting  of  bruises, 
that  no  bones  were  broken,  and  that  he  would  soon  be  able  to 
resume  his  occupation;  that  both  parties  acted  under  a  mutual 
mistake  of  fact  as  to  the  extent  and  nature  of  the  plaintiff's  in- 
juries, which  in  fact  consisted  of  a  fracture  of  the  neck  of  the 
femur  of  the  left  hip,  and  that  this  injury  was  unknown  to 
either  party  when  the  release  was  executed. 

After  the  plaintiff's  counsel  had  opened  the  case  to  the  jury 
upon  the  grounds  of  the  above  answer,  the  court  ordered  a  non- 


618  The  Answer.  [Chap.  V. 

suit,  on  the  assumption  that  the  plaintiff's  evidence  would  sus- 
tain his  claim  that  both  parties  supposed  at  the  time  of  the  set- 
tlement that  the  injuries  consisted  of  simple  bruises  only.  To 
this  order  the  plaintiff  excepted.* 

Walker,  J.  The  language  of  the  release  is  sufficiently  broad 
to  cover  all  the  damages  suffered  by  the  plaintiff  in  consequence 
of  the  collision  and  to  preclude  the  plaintiff  from  maintaining 
an  action  against  the .  defendant  therefor.  Its  execution  is  ad- 
mitted and  its  legal  construction  as  constituting  a  bar  to  the 
plaintiff's  action  is  not  denied.  But  it  is  argued  that  it  was 
entered  into  under  mistake,  made  by  both  parties,  in  reference 
to  a  material  matter  of  whose  existence  they  were  justifiably 
ignorant,  and  that  the  release  would  not  have  been  made  if  that 
fact  had  been  known  and  appreciated.  The  plaintiff,  therefore, 
is  practically  seeking  to  have  the  release  set  aside,  in  order  that 
he  may  proceed  with  his  action  at  law.  The  superior  court 
granted  the  defendant's  motion  for  a  nonsuit,  and  the  plaintiff 
excepted. 

One  question  presented  by  the  exception  is  whether  the  plain- 
tiff may  have  relief  for  the  alleged  mistake  by  a  practical  can- 
cellation of  the  release,  found  to  be  equitable  by  the  verdict  of 
a  jury  in  an  action  at  law,  or  whether  the  fact  of  the  mistake 
and  its  effect  upon  the  contract  should  not  be  tried  in  an  equi- 
table proceeding  in  aid  of  the  suit  at  law.  It  cannot  be  doubted 
that  the  jurisdiction  in  equity  in  relation  to  the  subject  of  mis- 
take in  written  contracts  is  ample  and  convenient.  "The  power 
of  a  court  of  equity  to  correct  mistakes  of  fact  is  a  very  wide 
and  general  one."  Bisp.  Eq.  (7th  ed.)  s.  190,  "Cases  in  which 
the  remedy  sought  and  obtained  is  one  which  equity  courts  alone 
are  able  to  confer  must,  upon  any  consistent  system  of  classifi- 
cation, belong  to  the  exclusive  jurisdiction  of  equity."  1  Pom. 
Eq.  Jur.,  s.  138.    •    ♦    • 

Although  one  reason  of  the  rule  is  that  the  remedy  sought  in 
eases  of  mistake  in  written  instruments  is  peculiarly  applicable 
to  proceedings  in  equity,  relief  in  most  cases  could  not  be  ob- 
tained at  law,  because  parol  evidence  which  tends  to  vary  and 
contradict  such  a  writing  is  not  admissible,  while  in  equity  it  is. 
"A  written  contract  that  does  not  express  the  intention  of  the 
parties  may  be  reformed  in  equity;  but  in  this  suit  at  law  the 

4  statement  condensed  and  parts  of  the  opinion  omitted. 


Sec.  2.]  New  Matter.  619 

policy  cannot  be  altered  by  parol  evidence."  Tasker  v.  Insur- 
ance Co.,  59  N.  H.  438.    *    *    * 

In  Sherburne  v.  Goodwin,  44  N.  H.  271,  277,  it  is  said:  "It 
is  urged  also  for  the  plaintiffs  that  if  the  terms  of  the  release 
are  such  as  to  include  this  fund  it  is  a  mistake,  and  that  the 
release  should  be  reformed.  But  independent  of  the  question 
whether  any  such  mistake  is  shown  as  would  entitle  the  party 
to  this  sort  of  relief,  it  is  quite  clear  that  it  could  be  granted 
only  upon  proceedings  instituted  for  that  purpose,  and  under 
such  circumstances  as  would  enable  the  court  to  do  justice  to 
both  parties,  and  not  by  simply  excluding  from  the  effect  of 
the  release  the  particular  demand,  and  thus  evading  the  rule 
that  prohibits  the  introduction  of  parol  evidence  to  contradict 
a  written  instrument." 

Another  reason  why  relief  for  mistake  in  a  written  contract 
should  be  sought  in  equity  is  that  courts  in  equity  seem  in  such 
case  to  have  adopted  a  more  stringent  rule  as  to  the  burden  of 
proof  or  the  weight  of  the  evidence  than  obtains  at  law,  in  order 
probably  to  show  that  in  equity  the  parol  evidence  rule  is  rec- 
ognized and  is  not  to  be  lightly  set  aside.  This  principle  was 
considered  in  Searles  v.  Churchill,  (69  N.  H.  530)  supra,  where 
it  was  held  that  a  written  instrument  will  be  reformed  in  equity 
when  it  fails  to  express  the  intention  of  the  parties  in  making 
the  contract  which  it  purports  to  contain ;  and  to  warrant  such 
decree,  the  mistake  alleged  must  be  esablished  as  matter  of  fact 
by  clear  and  convincing  proof.  Tilton  v.  Tilton,  (9  N.  H.  385) 
supra;  Busby  v.  Littletield,  (31  N.  H.  193)  supra;  Wiswall  v. 
Harriman,  62  N.  H.  671 ;  Healy  v.  Healy,  76  N.  H.  504.  It  is 
unnecessary  in  this  discussion  to  attempt  to  define  what  is  meant 
by  "clear  and  convincing  proof";  it  is  sufficient  to  note  that  it 
must  at  least  be  strong  enough  to  overcome  the  presumption 
that  the  written  instrument  contains  the  essential  terms  of  the 
contract,  upon  which  presumption  the  rule  excluding  parol  evi- 
dence of  the  intention  of  the  parties  is  based.  Howlan  v.  Blake, 
97  U.  S.  624,  626. 

In  view  of  the  uncontro verted  fact  that  the  remedies  of  re- 
scission and  reformation  of  contracts  entered  into  in  conse- 
quence of  the  mutual  mistakes  of  the  parties  fall  primarily  and 
naturally  within  the  peculiar  jurisdiction  of  equity,  and  in 
view  of  the  further  fact  that  the  principles  governing  equitable 
precedure  in  such  cases  are  better  adapted  to  the  ascertainraent 


620 


The  Answer. 


[Chap.  V 


of  truth  and  the  accomplishment  of  substantial  justice,  it  cannot 
be  doubted  that  the  plaintiff  must  first  obtain  relief  in  equity 
from  the  effect  of  his  general  release,  before  attempting  to 
charge  the  defendant  in  an  action  of  tort  for  the  consequences 
of  the  latter 's  alleged  negligence.^ 

The  plaintiff's  exception  to  the  ruling  of  the  superior  court 
ordering  a  nonsuit  must,  therefore,  be  overruled.  But  under 
the  liberal  procedure  adopted  in  this  jurisdiction,  his  answer  to 
the  defendant's  brief  statement  may  be  treated  as  a  bill  in 
equity,  in  which  relief  is  sought  to  remove  the  impediment  cre- 
ated by  the  release  to  the  maintenance  of  his  action  at  law. 
Stebbins  v.  Robbins,  67  N.  H.  232.  The  question  would  then 
be  whether  upon  these  allegations  relief  could  be  granted.^  *  *  * 

If,  as  the  plaintiff  alleges,  the  statment  of  the  defendant's 
physician  that  the  plaintiff's  injuries  were  slight  and  that  no 
bones  were  broken  was  fraudulently  made  for  the  purpose  of 
bringing  about  a  compromise,  and  the  plaintiff  relied  upon  that 
representation  when  he  executed  the  release,  a  distinct  claim  for 
relief  would  be  presented  which  it  would  not  be  useful  to  discuss 
at  this  time.    Upon  the  present  state  of  the  case,  the  order  is, 

Exception  overruled. 


BAce.  Perry  v.  O'NeiU  78  Ohio 
St.  200,  (1908);  Hancock  v.  Black- 
well,  139  Mo.  440,  (1897),  where 
the  case  was  remanded  to  allow 
the  plaintiff  to  amend  the  com- 
plaint by  adding  an  equitable 
count  to  set  aside  the  release  at- 
tempted to  be  attacked  by  the 
reply  in  the  original  case.  By  a 
later  amendment  to  the  Missouri 
Code  a  reply  of  fraud  is  expressly 
permitted  in  such  cases,  and  the 
issue  made  triable  by  jury,  Non- 
Eoyalty  Shoe  Co.  v.  Phoenix  Ins. 


Co.,  210  S.  W.  37,  (1919):  For 
a  collection  of  the  cases  see  Alston 
V.  Oregon  Water  Co.,  20  L.  E.  A. 
(N.  S.)  915,  (1908).  That  section 
274b  of  the  U.  S.  Judicial  Code 
does  not,  in  such  a  case,  allow  a 
reply  in  the  nature  of  a  bill  in 
equity,  see  Keatley  v.  U.  S.  Trust 
Co.,  249  Fed.  (C.  C.  A.)  296,  (1918). 
6  For  a  collection  of  cases  on 
mistake  as  an  equitable  defense, 
see  note  to  the  principal  case  in 
L.   E.   A.   1916   B.  769. 


Sec.  2.]  New  Matter.  621 

IV.    By  Way  of  Counterclaim. 

VASSEAR  V.  LIVINGSTON. 

Court  of  Appeals  of  New  York,  1855.    13  N.  Y.  248. 

The  action  was  brought  in  1853  by  the  plaintiff,  as  the  as- 
signee of  Alexander  H.  Ritchie,  and  the  complaint  set  forth  that 
the  defendant  employed  Ritchie  to  engrave  four  likenesses  for 
$50  each,  which  Ritchie,  it  was  alleged,  had  done,  and  that  the 
defendant  had  refused  to  receive  the  plates  and  pay  for  the  en- 
graving ;  and  furthermore  that  Ritchie  had  assigned  the  demand 
to  the  plaintiff.  The  answer  denied  the  allegations  of  the  com- 
plaint, and  as  a  further  and  separate  answer  set  forth  that 
Ritchie  had  agreed  to  engrave  the  four  plates  from  daguerreo- 
type portraits  for  the  defendant,  and  to  finish  and  deliver  them 
within  six  weeks  from  April  2nd,  1853;  that  he  had  failed  to 
perform  that  agreement;  that  the  portraits  were  designed,  as 
Ritchie  knew,  for  illustrations  of  a  periodical  publication  issued 
by  the  defendant,  and  that  the  latter  had  sustained  damages  on 
the  account  of  Ritchie's  default  in  the  premises  to  $200,  which 
the  defendant  claimed  to  recoup  and  set-off  against  any  damages 
to  be  established  by  the  plaintiff.  The  answer  concluded  by 
praying  judgment  for  damages  against  the  plaintiff  of  $200. 
No  reply  was  put  in. 

On  the  trial  before  Chief  Justice  Oakley,  the  defendant,  be- 
fore any  evidence  was  given,  asked  for  a  dismissal  of  the  com- 
plaint, on  the  ground  that  the  answer  contained  a  counter-claim, 
which,  there  being  no  reply,  was  admitted ;  and  as  the  damages 
of  the  defendant,  as  stated  in  the  answer,  were  equal  to  the 
claim  made  by  the  plaintiff,  there  could,  it  was  claimed,  be  no 
recovery  in  favor  of  the  plaintiff.  The  motion  was  denied  and 
the  defendant  excepted.  *  *  *  Verdict  for  the  plaintiff.  The 
judgment  was  affirmed  at  the  general  term,  whereupon  the  de- 
fendant appealed  to  this  court.  The  case  was  submitted  on 
printed  points. 

Marvin,  J.  Upon  the  trial,  previous  to  the  introduction  of 
evidence,  the  defendant  moved  that  the  complaint  be  dismissed 
on  the  ground  that  the  answer  contained  material  allegations  of 
new  matter,  constituting  a  counter-claim  for  $200,  and  as  it  had 
not  been  controverted  by  a  reply,  the  allegations  must,  for  the 


622  The  Answer.  [Chap.  Y. 

purposes  of  the  action,  be  taken  as  true,  and  the  plaintiff's  claim 
being  only  $200,  the  defendant  was  entitled  to  a  judgment  upon 
the  pleadings.  This  motion  was  denied,  and  the  defendant  ex- 
cepted. This  decision  presents  the  most  important  question  in 
the  case,  and  I  think  the  defendant  has  misapprehended  the  ef- 
fect of  the  pleadings.  Let  us  bring  here  under  notice  the  provi- 
sions of  the  Code  which,  it  is  supposed,  control  the  question. 
The  answer  is  to  contain:  (1)  A  general  or  specific  denial  of 
each  material  allegation  of  the  complaint  controverted  by  the 
defendant;  (2)  A  statement  of  any  new  matter  constituting  a 
defense  of  counter-claim.  (Code  §  149.)  The  counter-claim 
must  be  one  existing  in  favor  of  a  defendant  and  against  a 
plaintiff,  between  whom  a  several  judgment  may  be  had  in  the 
action,  and  arising  out  of  one  of  the  following  causes  of  action : 
(1)  A  cause  of  action  arising  out  of  the  contract  or  transaction 
set  forth  in  the  complaint  as  the  foundation  of  the  plaintiff's 
claim,  or  connected  with  the  subject  of  the  action;  (2)  In  an 
action  arising  on  contract,  any  other  cause  of  action  arising  on 
contract,  and  existing  at  the  commencement  of  the  action. 
(§  150.)  When  the  answer  contains  new  matter,  constituting  a 
counter-claim,  the  plaintiff  may,  within  twenty  days,  reply  to 
such  new  matter,  denying  generally  or  specifically  each  allega- 
tion controverted  by  him,  &c.     (§  153.) 

By  §  168,  every  material  allegation  of  new  matter  in  the  an- 
swer, constituting  a  counter-claim,  not  controverted  by  the  re- 
ply, shall  for  the  purposes  of  the  action  be  taken  as  true. 

A  good  cause  of  action  was  set  forth  in  the  complaint,  and  the 
defendant,  by  his  answer,  put  in  issue  the  material  allegations  of 
the  complaint.  The  new  matters  pleaded  did  not  dispense  with 
the  necessity  of  trying  the  issues  formed  directly  upon  the  com- 
plaint. The  defendant  did  not,  and  does  not  now  claim  that  the 
new  matter  in  the  answer  showed  that  the  plaintiff  had  no  cause 
of  action,  but  he  claimed  that  the  new  matter  showed  that  he, 
the  defendant,  had  a  cause  of  action  or  counter-claim  against 
Ritchie,  the  assignor,  in  which  his  damages  were  equal  to  the 
damages  claimed  by  the  plaintiff,  and  that  when  these  damages 
were  set-off  or  recouped,  they  left  the  plaintiff  without  any  right 
to  damages,  and  that  therefore  his  complaint  should  be  dis- 
missed. This  position  cannot  be  sustained.  The  new  matter 
stated  constituted  in  no  sense  a  set-off.  It  constituted,  if  appli- 
cable to  the  case  made  by  the  complaint  that  is,  if  it  related  to 


Sec.  2.]  New  Matter.  623 

the  same  contract  or  employment  stated  in  the  complaint,  a  de- 
fense upon  the  ground  of  failure  on  the  part  of  Ritchie  to  per- 
form the  agreement.  A  set-off  could  in  no  way  arise  out  of 
such  failure.  Did  the  answer,  in  which  the  defendant  proposed 
to  recoup  and  set-off  his  damages,  state  facts  authorizing  a  re- 
coupment, or  facts  involving  the  doctrine  of  recoupment  in  any 
wise?  Clearly  not.  The  facts,  assuming  that  the  pleader  in- 
tended them  to  apply  to  the  cause  of  action  stated  in  the  com- 
plaint, did  not  involve  the  doctrine  of  recoupment  in  any  form. 
They  showed  a  special  agreement  with  Ritchie  in  relation  to  the 
engraving,  and  a  failure  on  his  part  to  perform  the  agreement, 
whereby  the  defendant  alleges  that  he  sustained  damages.  He 
had  never  received  the  engravings.  If  the  facts  stated  were  true, 
then  he  had  a  good  cause  of  action  against  Ritchie  for  damages 
for  a  breach  of  the  special  agreement,  but  Ritchie  had  no  cause 
of  action  against  him.  In  short,  the  very  facts  which  would  give 
the  defendant  a  cause  of  action  against  Ritchie  for  damages  for 
a  breach  of  the  agreement,  would  show  that  Ritchie  never  had 
any  cause  of  action  against  him,  and  there  would  be  nothing  out 
of  which  to  recoup  his  damages.  Recoupment  always  implies 
that  the  plaintiff  had  a  cause  of  action,  but  the  defendant  alleges 
that  he  too  has  a  cause  of  action  growing  out  of  a  breach  of  some 
other  part  of  the  contract  upon  which  the  action  is  founded,  or 
for  some  other  cause  connected  with  the  contract,  and  it  is  in 
the  nature  of  a  cross  action.  Under  the  former  system  of  plead- 
ing the  defendant  could  not  make  the  defense  by  a  special  plea 
in  bar,  as  it  was  a  rule  that  such  plea  must  state  facts  forming 
a  bar  to  the  action,  whereas  recoupment  in  its  very  nature  ad- 
mitted the  plaintiff  had  a  cause  of  action.  (Nichols  v.  Dusen- 
bury,  2  Comst.  284.) 

The  counter-claim  of  the  Code  is  undoubtedly  broader  and 
more  comprehensive  than  set-off  and  recoupment.  It  authorizes 
a  resort  by  the  defendant,  to  causes  of  action  by  way  of  defense, 
other  than  set-off  or  recoupment.  It  has  attempted,  however,  to 
limit  and  define  the  defendant's  rights.  It  clearly  authorizes 
set-off  and  recoupment,  and  I  had  no  doubt  they  were  authorized 
by  the  first  Code,  under  the  word  defense,  in  the  section  relating 
to  the  answer.  However  that  was,  it  is  clear  they  are  authorized 
by  the  amendments  of  1852,  and  something  more.  By  the  sec- 
ond subdivision  of  §  150,  in  an  action  arising  on  contract,  the 
defendant  may  avail  himself  by  way  of  defense  of  any  other 


624  The  Answer.  [Chap.  V. 

cause  arising  on  contract,  and  existing  at  the  commencement  of 
the  action.  It  is  not  claimed  by  the  defendant  that  this  provi- 
sion has  any  application  to  the  present  case.  It  is  claimed  that 
the  plaintiff,  as  assignee  of  the  demand,  took  it  subject^  to  all 
equities  to  any  set-off  or  right  of  recoupment  which  the  defend- 
ant had,  and  this  claim  is  undoubtedly  well  founded.  As  we 
have  seen,  the  defendant  had  no  right  of  set-off,  recoupment,  or 
cause  of  action  against  this  plaintiff,  who  by  becoming  assignee 
did  not  subject  himself  to  a  cause  of  action  existing  against  his 
assignor^  so  as  to  have  judgment  against  him  for  damages.  If 
the  provision  of  the  Code  just  cited,  should  be  construed  as  au- 
thorizing a  defendant,  when  sued  by  an  assignee  in  an  action  on 
contract,  to  avail  himself  of  any  other  cause  of  action  on  con- 
tract against  the  assignor,  so  far  as  to  satisfy  or  compensate  the 
damages  in  the  action  by  the  assignee  against  him,  it  would  not 
benefit  the  defendant  in  this  case.  Here  the  facts  stated  in  the 
answer  related  to  the  same  engagement  or  contract,  upon  which 
the  plaintiff's  action  was  founded,  and  if  the  plaintiff  had  a 
good  cause  of  action,  the  defendant  had  none.  If  the  plaintiff, 
as  assignee  of  Ritchie,  had  no  cause  of  action,  then  the  defend- 

IBy  section  112  of  the  original  tee,  v.  Windsor   Trust  Co.,  213   N. 

code  it  was  provided  that  in  case  Y.   27,    (1914). 

of  an  assignment  of  a  thing  in  In  the  Code  of  1876,  section  112 
action,  the  action  by  the  assignee  was  supplanted  by  section  1909, 
should  be  without  prejudice  to  any  which  provided  for  actions  by  the 
set  off  or  other  defence  existing  assignee,  subject  to  any  defence  or 
at  the  time  of  or  before  notice  of  counterclaim,  existing  against  the 
the  assignment,  except  in  cases  of  transferor  before  notice  of  trans- 
negotiable  instruments  transferred  fer,  or  against  the  transferee.  By 
in  good  faith,  etc.  before  maturity.  section  267  of  the  Civil  Practice 
The  Act  of  2  Geo.  2,  c.  22,  s.  Act  of  1920,  a  counterclaim  against 
13,  provided  that  where  there  were  the  plaintiff's  assignor  must  be  al- 
" mutual  debts"  between  the  plain-  lowed  to  the  amount  of  the  plain- 
tiff   and   the    defendant,    one    debt  tiff's  demand. 

might  be  set  off  against  the  other.  2  That  the  usual  provision  found 

Similar  statutes   were  in  effect   in  in  the   Code  authorizing  necessary 

the   several   states   at   the   time   of  parties  to  be  brought  into  the  case, 

the  adoption  of  the  code.     In  most  does    not    enable    a    defendant    to 

instances    the    statute    of    set-offs  force  the  plaintiff's  assignor  to  be 

was  retained  after  the  Code  provi-  made   a   party  in   order   to   set   up 

sion   for  counterclaims.  For  a  dis-  a  legal   counterclaim   against   him, 

cussion  of  what  constitutes  mutual  see  State  ex  rel.  v.  Superior  Court, 

indebtedness    within    the    meaning  194    Pac.   412,    (Wash.    1920),    and 

of  such  statutes,  see  Morris,   trus-  comments  by  Professor  Sunderland 

in  19  Mich.  Law  Eev.,  540. 


Sec.  2.]  New  Matter.  625 

ant  had  no  cause  of  action  against  Ritchie,  which  he  could  use 
against  the  plaintiff.  In  short,  it  was  necessary  to  try  the  issue 
joined  by  the  denial  in  the  answer,  and  upon  the  trial  of  that 
issue  all  the  rights  of  the  defendant  in  this  action  could  be  pro- 
tected. If  Ritchie  failed  to  perform  his  agreement  the  plaintiff 
could  not  recover,  and  the  defendant  then,  if  he  had  sustained 
damages  by  a  breach  of  the  agreement  by  Ritchie,  could  bring 
his  action  against  him.  The  facts  stated  in  the  answer  did  not 
constitute  a  counter-claim,  and  no  reply  was  necessary  to  put 
them  in  issue.  No  error,  therefore,  was  committed  in  refusing 
to  dismiss  the  complaint.    *    *    * 

Judgment  affirmed. 


RESCH  V.  SENN. 
Supreme  Court  of  Wisconsin,  1872.    31  Wis.  138. 

Action  upon  a  promissory  note  executed  by  the  defendants  to 
the  plaintiff.  Complaint  in  the  usual  form.  The  answer  ad- 
mits the  making  and  delivery  of  the  note  as  alleged  in  the  com- 
plaint, and  "for  further  defenses"  states  certain  facts,  which, 
if  true,  show  that  the  note  was  fraudulently  obtained  and  with- 
out consideration.  It  also  contains  the  following  demand  for 
relief:  "Wlierefore  the  defendants  demand  that  the  complaint 
of  the  plaintiff  be  dismissed,  and  that  these  defendants  be  al- 
lowed their  costs;  that  the  said  note  be  delivered  up  and  can- 
celled ;  and  for  such  other  and  further  relief  as  to  the  court  may 
seem  just  and  equitable."    To  this  answer  there  was  no  reply. 

When  the  action  was  brought  to  trial,  and  before  any  other 
proceedings  were  taken,  the  defendants  moved  the  court  for 
judgment  upon  the  pleadings,  on  the  ground  that  the  answer 
constitutes  a  counterclaim,  to  which  there  was  no  reply.  The 
court  overiiiled  such  motion,  and  the  plaintiff  then  read  the 
note  in  evidence,  and  rested  his  case.  The  defendants  thereupon 
renewed  the  motion  for  judgment,  which  was  again  overruled 
by  the  court.  No  testimony  was  offered  by  the  defendants  and 
no  other  or  further  testimony  was  given  on  the  trial. 

The  plaintiff  had  a  verdict  and  judgment  for  the  amount  due 
on  the  note  by  its  terms ;  and  the  defendants  appealed. 


626  The  Answer.  [Chap.  V. 

Lyon,  J.  The  only  question  to  be  determined  on  this  appeal 
is,  Does  the  answer  contain  a  counterclaim  ?  If  it  does,  it  would 
seem  that  the  motion  of  the  defendants  for  judgment  for  want 
of  a  reply  should  have  been  granted,  although  no  notice  of  the 
motion  was  served  as  provided  by  the  statute,  R.  S.,  ch.  125,  sec. 
16.  But,  however  this  may  be,  the  failure  to  reply  to  a  counter- 
claim is  an  admission  by  the  plaintiff  that  the  same  is  true,  and 
a  judgment  in  his  favor  entered  on  the  trial,  in  the  face  of  an 
admission  made  by  the  pleadings  that  there  ought  to  be  no  such 
judgment,  is  clearly  erroneous,  and  should  be  reversed.  Bridge 
v.  Payson,  5  Sandf.  210.  If  the  answer  does  not  contain  a  coun- 
terclaim, the  judgment  should  be  affirmed,  inasmuch  as  the 
execution  of  the  note  was  admitted,  as  well  as  proved,  and  there 
was  no  testimony  given  or  offered  tending  to  show  that  it  was 
not  a  valid  note. 

It  is  the  first  essential  of  a  counterclaim  that  it  shall  of  itself 
be  a  distinct  cause  of  action  existing  in  favor  of  a  defendant 
and  against  the  plaintiff,  between  whom  a  several  judgment 
might  be  had.  E.  S.,  ch.  125,  sec.  11 ;  Matteson  v.  Ellsworth, 
28  Wis.  254. 

In  the  present  case,  unless  the  defendants  could  have  main- 
tained an  equitable  action  against  the  plaintiff  to  compel  him 
to  surrender  the  note  in  suit  for  cancellation,  the  answer  does 
not  contain  a  counterclaim,  but  only  a  defense,  to  which  no 
reply  was  necessary  or  allowable.' 

We  are  not  aware  that  it  has  ever  been  held  that  an  action 
in  equity  may  be  maintained  by  a  party  to  an  overdue  promis- 
sory note,  to  compel  a  surrender  thereof  for  cancellation,  espe- 
cially after  a  suit  at  law  has  been  brought  upon  the  note,  in 
which  suit  every  objection  to  the  validity  of  the  note  is  avail- 
able as  a  defense.  Suppose,  under  the  practice  before  the  code, 
this  action  had  been  brought,  and  the  defendants  had  filed  their 
bill  in  equity  to  restrain  proceedings  therein,  and  to  compel  the 
plaintiff  to  surrender  the  note  to  be  cancelled.  Would  not  the 
chancellor  have  said  to  the  complaiiiants,  the  makers  of  the  note, 
that  they  had  an  adequate  and  complete  remedy  at  law,  by  set- 
ting up  in  the  action  against  them  the  alleged  fraud  and  want  of 
consideration  as  a  defense? 

8  Under     the     Wisconsin     Code,       New  York  Code  in  this  respect, 
which    differs   somewhat    from   the 


Sec.  2.]  New  Matter.  627 

The  doctrine  of  the  jurisdiction  of  courts  of  equity  in  such 
case  is  very  ably  discussed  by  Chancellor  Kent,  in  Hamilton  v. 
Cummings,  1  Johns.  Ch.  R.  517 ;  and,  after  reviewing  the  Eng- 
lish authorities,  he  states  his  conclusions  as  follows: 

"Perhaps  the  cases  may  all  be  reconciled  on  the  general  prin- 
ciple that  the  exercise  of  this  power  is  to  be  regulated  by  sound 
discretion,  as  the  circumstances  of  the  individual  case  may  dic- 
tate; and  that  the  resort  to  equity,  to  be  sustained,  must  be  ex- 
pedient, either  because  the  instrument  is  liable  to  abuse  from 
its  negotiable  nature,  or  because  the  defense,  not  arising  on  its 
face,  may  be  difficult  or  uncertain  at  law,  or  from  some  other 
special  circumstances  peculiar  to  the  case,  and  rendering  a  re- 
sort here  highly  proper  and  clear  of  all  suspicion  of  any  design 
to  promote  expense  and  litigation." 

In  the  present  case  there  is  no  such  liability  to  abuse  because 
of  the  negotiable  character  of  the  note,  for  it  is  overdue,  and  a 
transfer  of  it  would  not  prejudice  the  defendants:  neither  is 
the  defense  to  the  note,  if  true,  difficult  or  uncertain  at  law, 
but  plain,  easy  and  complete ;  neither  are  there  any  special  cir- 
cumstances, such  as  delay  in  prosecuting  the  note,  which  afford 
grounds  for  the  interposition  of  a  court  of  equity. 

We  are  of  the  opinion,  therefore,  that  the  answer  does  not 
contain  a  counterclaim,  because  after  the  action  was  commenced 
the  defendants  could  not  have  maintained  an  action  against  the 
plaintiff  to  compel  him  to  surrender  the  note  for  cancellation. 
See  Matteson  v.  Ellsworth,  supra.^ 

But,  conceding  that  the  facts  stated  in  the  ansAver  constitute 
the  proper  subject  matter  of  a  counterclaim,  yet  they  are  not 
pleaded  as  such,  but  are  expressly  pleaded  as  a  "defense."  Had 
the  answer  simply  stated  the  facts,  and  demanded  affirmative 
relief,  it  might  be  held  to  constitute  a  counterclaim  under  our 
decision  in  Gunn  v.  Madigan,  28  Wis.  158 ;  but  it  is  difficult  to 
perceive  on  what  principle  the  averments  in  an  answer,  which 

4  And    so    in    Lock    v.    Moulton,  the  same  state  of  facts  would  con- 

108    Cal.   49,    (1895),    ante   p.    611.  stitute   either  a  counterclaim  or  a 

Guaranteed  Investment  Co.  v.  Cop-  defense,    the    absence    of    any    de- 

per  Co.,  156  Wis.  173,   (1914).    See  mand   for  judgment   or   aflirmative 

also    Holzbauer   v.   Heinz,   37   Mo.,  relief  characterizes  the  pleading  as 

443,    (1866),   where   the    attempted  defensive    merely,    Gunn    v.    Madi- 

counterclaim    amounted    simply    to  gan,  28   Wis.   158,    (1871),   ante   p. 

the    defence    of   payment.     Where  600. 


628  The  Answer.  [Chap.  V. 

the  pleading  expressly  says  are  interposed  as  a  defense,  can  be 
held  to  constitute  a  counterclaim.  In  Burrall  v.  De  Groot,  5 
Duer  379,  an  answer  almost  precisely  like  this  was  held  not  to 
amount  to  a  counterclaim,  and  we  think  the  ruling  in  that  case 

was  right. 

Judgment  affirmed. 


BATES  V.  ROSEKRANS. 
Court  of  Appeals  of  New  York,  1867.    37  N.  Y.  409. 

The  action  was  brought  upon  a  joint  and  several  promissory 
note,  dated  September  11,  1851,  for  the  payment  of  $2,553.71, 
made  by  the  defendant  and  one  Andrew  Bigham  to  the  order  of 
and  indorsed  by  Bates  &  Griffin.  On  the  trial  the  defendant's 
counsel  made  a  motion  for  judgment  upon  the  pleadings,  upon 
the  ground  that  the  plaintiff  had  not  replied  to  the  counter 
claims  of  the  defendant  contained  in  the  answer.  The  court 
overruled  the  motion,  and  the  defendant's  counsel  excepted. 
*  •  *  The  court  directed  a  verdict  for  the  plaintiff  for  the 
amount  of  the  note.  The  General  Term  affirmed  the  judgment 
entered  upon  the  verdict,  and  the  defendant  now  brings  his 
appeal  to  this  court.^ 

Hunt,  J.  *  *  *  The  defendant  insisted  at  the  trial,  and 
his  counsel  now  argue,  that  he  was  entitled  to  judgment  at  the 
circuit,  on  the  ground  that  the  plaintiff  had  not  replied  to  the 
counterclaims  contained  in  his  answer.  The  fifth  answer  con- 
tains the  statements  that  are  the  most  strenuously  insisted  upon 
as  constituting  a  counter  claim,  and  an  examination  of  that  will 
suffice  for  the  whole.  The  defendant  therein  alleges,  "as  a  fur- 
ther defense,"  that  the  note  in  the  complaint  described  arose 
out  of  partnership  transactions,  of  which  the  defendant  and  one 
Bigham  were  members,  and  was  given  for  the  benefit  of  the 
partnership,  which  facts  were  known  to  the  plaintiff,  and  after- 
ward Bigham  transferred  all  his  interest  in  the  partnei-ship 
property  to  the  plaintiff,  who  was  then  the  holder  of  the  note, 
and,  in  consideration  thereof,  the  plaintiff  agreed  with  Bigham 

6  Statement  condensed  and  part  of  the  opinion  omitted. 


Sec.  2.]  New  Matter.  629 

to  pay  his  share  of  the  debts  of  the  partnership,  and  any  balance 
due  from  him  to  the  partnership,  and  to  cancel  the  note;  that 
Bigham's  share  of  the  debts  amounted  to  more  than  the  note; 
that  Bigham  owed  the  partnership  a  balance  greater  than  the 
amount  of  the  note,  and  the  plaintiff  has  received,  and  holds, 
under  the  assignment,  property  of  more  value  than  the  amount 
of  the  note,  and  that  he  has  not  paid  any  part  of  the  partner- 
ship debts,  and  refuses  to  apply  the  partnership  property  to 
the  payment  of  said  debts.  The  defendant  does  not  pretend 
that  he  was  precluded  from  making  proof  of  the  allegations 
contained  in  this  answer,  and  thus  establishing  the  equitable 
defense  arising  from  the  statements  therein  contained.  He  in- 
sists that  by  the  rules  of  pleading  in  existence  at  the  time  of 
the  trial,  a  "counter  claim"  was  to  be  taken  as  true,  unless  it 
was  formally  denied  by  the  plaintiff,  and  that,  no  denial  having 
been  made  in  the  present  case,  he  was  of  right  entitled  to  a 
judgment  upon  the  pleadings.  The  court  below  held  the  plead- 
ing to  be  an  answer  and  not  a  technical  counter  claim,  and  over- 
ruled his  demand  for  judgment.  This  decision  was  right  for 
several  reasons. 

The  first  ground  is  that  the  answer  states  no  claim  "existing 
in  favor  of  the  defendant  against  the  plaintiff."  The  code  is 
express  that  the  claim  "must  be  one  existing  in  favor  of  a  de- 
fendant and  against  a  plaintiff."  (Code,  §  150;  Vassear  v. 
Livingston,  3  Kern  248.)  The  claim,  as  stated  in  the  pleading, 
is  in  favor  of  Bigham,  or  of  his  representatives,  if  he  is  dead, 
and  not  of  the  defendant.  It  was  Bigham,  and  not  the  defend- 
ant, who  transferred  the  property  to  the  plaintiff.  It  was  to 
Bigham,  and  not  to  the  defendant,  that  the  plaintiff  made  the 
promise  to  pay  the  partnership  debts  and  to  cancel  the  note. 
It  was  to  Bigham,  and  not  to  the  defendant,  that  he  was  bound 
to  account  for  the  property,  or  its  proceeds,  if  he  failed  to  make 
a  proper  application  of  it.  A  perfect  cause  of  action  exists  in 
favor  of  Bigham  if  the  statements  of  the  answer  are  true,  pos- 
sibly also  in  favor  of  the  holder  of  the  note  or  a  creditor  of  the 
firm,  but  none  in  favor  of  the  defendant,^  himself  one  of  the 

6  Accord:     Gillespie  v.  Torrance,  that  it  is  pleaded  as  a  counterclaim 

25   N.  Y.  306,    (1862):   Etlinger  v.  will  not   deprive  the  defendant  of 

Surety  Co.,  221  N.  Y.  467,   (1917).  the    benefit    of    such    matter    as    a 

But  a  cause  of  action  in  favor  of  set   off,  West   Allis  Lumber  Co.  v. 

another  may  be  available  to  the  Wiesenthal,  141  Wis.  460,  (1910). 
defendant  as  a  set  off,  and  the  fact 


630  The  Answer.  [Chap.  V. 

debtors  in  the  transaction.  (Beardsley  Scythe  Co.  v.  Foster, 
36  N.  Y.  561.)  While  it  is  unnecessary  to  decide  whether  these 
circumstances  would  afford  an  equitable  defense  to  this  action, 
it  is  clear  that  they  do  not  avail  the  defendant  in  the  technical 
aspect  in  which  he  here  seeks  to  defeat  the  plaintiff's  right  of 
recovery. 

I  think  the  answer  given  by  the  court  below  is  also  a  sound 
one,  to  wit,  that  the  pleading  does  not  purport  to  be  a  counter- 
claim. It  designates  itself  as  "a  further  defense"  simply,  and 
there  rests.  No  particular  form  of  words  is  necessary  to  make 
a  pleading  a  counter  claim ;  and  if  the  party  had,  in  any  reason- 
able language,  intimated  that  he  intended  to  make  a  personal 
claim  in  his  own  favor  against  the  plaintiff,  it  would  have  been 
sufficient.  The  ordinary  and  most  satisfactory  form  of  giving 
that  intimation,  is  by  a  statement  that  the  pleading  is  a  counter 
claim,  or  by  a  prayer  for  relief.  The  present  pleading,  however, 
contains  no  words  that  would  have  justified  the  plaintiff  in  sup- 
posing that  any  personal  judgment  was  sought  against  him,  and 
in  preparing  for  that  emergency. 

Judgment  affirmed. 


GUSHING  V.  SEYMOUR  &  CO. 
Supreme  Court  of  Minnesota,  1883.    30  Minn.  301. 

The  plaintiff  had  given  defendant  a  chattel  mortgage  on  cer- 
tain personal  property  to  secure  several  promissory  notes.  Be- 
fore the  maturity  of  the  notes,  defendant  took  possession  of  the 
property  and  attempted  to  foreclose  by  notice  and  sale.  Plain- 
tiff brought  this  action  for  the  conversion  of  the  property  and 
recovered  full  value.'' 

Berry,  J.  *  *  *  If,  upon  the  facts  of  the  case,  it  was  to 
be  charged  for  a  wrongful  conversion  of  the  property  seized, 
the  defendant  insisted  upon  its  right  to  have  the  amount  of  the 
two  unpaid  notes  held  by  it,  and  secured  by  the  chattel  mort- 
gage, both  of  which  had  matured  at  the  time  of  the  trial,  de- 
ducted from  the  whole  amount  of  damages  to  which  the  plain- 

7  statement  condensed  and  part  of  the  opinion  omitted. 


Sec.  2'.]  New  Matter.  631 

tiffs  should  otherwise  be  found  entitled.  But  the  trial  court  was 
of  opinion  that  the  deduction  was  not  allowable,  and  ruled  ac- 
cordingly. Though  there  is  some  conflict  of  opinion  upon  the 
subject,  we  think  the  ruling  wrong,  both  upon  the  weight  of 
authority  and  upon  reason.  When  the  assumed  conversion  oc- 
curred, the  position  of  the  parties  was  this:  The  plaintiffs  had 
a  cause  of  action  against  defendant  for  the  conversion  of  prop- 
erty in  which  their  (the  plaintiffs)  interest  was  a  right  of  re- 
demption, (Fletcher  v.  Newdeck,  [30  Minn.  125]  supra)  the 
value  of  which  was  the  difference  between  the  whole  value  of  the 
property  and  the  amount  of  the  debt  secured  by  the  mortgage. 
The  plaintiffs  were  also  entitled  to  the  possession  and  use  of 
the  property  until  default  in  payment  of  the  debt  or  some  part 
of  it,  or  until  defendant,  deeming  its  debt  insecure,  for  just 
cause,  took  possession  of  it  on  that  account.  But,  as  respects 
the  value  of  the  property,  plaintiffs  were  entitled  to  recover  such 
a  sum  as  would  equal  the  value  of  their  interest  in  it,  for  this 
would  be  compensation,  which  is  the  purpose  of  damages;  and 
as  the  value  of  their  interest  was  the  difference  before  spoken 
of,  it  follows  that  the  defendant  was  entitled  to  deduct  from  the 
whole  value  of  the  property  converted  the  amount  of  the  two 
unpaid  notes  secured  by  the  mortgage.  This  result  secures  com- 
pensation, prevents  circuity  of  action,  and  is  sanctioned  by  au- 
thority. Brierly  v.  Kendall,  17  Q.  B.  937;  Johnson  v.  Stear, 
15  C.  B.  (N.  S.)  330;  Brown  v.  Phillips,  3  Bush  (Ky.)  656; 
Eussell  V.  Butterfield,  21  Wend.  300 ;  Brink  v.  Freoff,  40  Mich. 
610,  and  44  Mich.  69 ;  Ball  v.  Liney,  48  N.  Y.  6 ;  Fowler  v.  Gil- 
man,  13  Met.  267 ;  Chamberlin  v.  Shaw,  18  Pick.  278 ;  Field  on 
Damages,  §§  816,  822 ;  Wood's  Mayne  on  Damages,  §  514.  These 
authorities  go  upon  the  principle  that  where  a  plaintiff's  title 
to  or  interest  in  a  thing  is  partial,  damages  for  its  conversion  by 
one  holding  the  rest  of  the  title  or  interest  should,  as  respects 
the  value  of  the  thing,  be  partial  also. 

In  this  view  the  notes  were  admissible,  without  being  specially 
pleaded,^  for  that  purpose,  because,  in  connection  with  the  mort- 

8  Compare    Anderson    v.    Wilson,  balance  due  on  the  purchase  price, 

132   Minn.   364,    (1916).  and    thereby    defeating    plaintiff's 

For   an   unusual   situation  where  action    for    the    possession    of    the 

the  plaintiff 's    liability  for  a  breach  goods,  see  Penser  v.  Marsh,  218  N. 

of  warranty  in  a  conditional  sale  Y.  505,   (1916). 
was    set    up    as    extinguishing    the 


632  The  Answer.  [Chap.  V. 

gage,  they  went  directly  to  disprove  the  allegation  of  the  com- 
plaint as  to  the  quantum  of  plaintiffs'  interest  in  the  property 
converted  and  their  damages.  The  complaint  alleged  a  general 
and  unqualified  ownership  of  the  property  by  plaintiffs,  and 
accordingly  alleged  and  claimed  damages  for  its  full  value. 
The  mortgage,  in  connection  with  the  notes,  went  to  show  that 
plaintiffs'  right  in  the  property  (aside  from  the  right  of  pos- 
session before  spoken  of)  was  a  right  of  redemption,  the  value 
of  which  was  the  value  of  the  property  less  the  amount  of  the 
unpaid  notes.  Though  the  mortgage  and  notes  are  in  a  sense 
new  matter,  their  evidentiary  effect  is  not  in  support  of  a  con- 
fession and  avoidance,  but  they  tend  directly  to  disprove  aver- 
ments of  the  complaint  which  plaintiffs  must  prove  in  order  to 
make  out  -their  alleged  cause  of  action.  They  therefore  support 
the  general  denial  in  defendant's  answer,  and  are  provable 
under  it.  Bliss  on  Code  PL  §§  327,  328,  352,  and  notes;  Pom- 
eroy  on  Remedies,  §§  670,  673;  O'Brien  v.  MeCann,  58  N.  Y. 
373 ;  State  v.  Williams,  48  Mo.  210.    *    ♦    * 

Judgment  reversed. 


TAYLOR  V.  ROOT. 

Court  of  Appeals  of  New  York,  1868.    4  Keyes  335. 

Woodruff,  J.  The  agreement,  set  forth  in  the  complaint 
herein  as  the  foundation  of  the  action,  required  the  defendants 
to  divide  the  net  proceeds  of  the  publication  of  the  New  York 
Register,  etc.,  into  five  parts.  Two  of  these  parts  the  defendants 
were  to  retain  to  themselves,  and  one  of  the  remaining  three 
parts  they  were  to  pay  to  each  of  the  plaintiffs. 

The  plaintiffs  were  entitled  to  an  accounting;  but  although 
they  joined  in  an  action  to  compel  the  defendants  to  render  an 
account,  they  could  not  thereby  change  the  several  nature  of 
their  respective  claims  to  payment.  When  the  amount  of  net 
proceeds  was  ascertained  or  admitted,  each  plaintiff  was  en- 
titled to  an  equal  one-fifth  part  thereto ;  and  a  judgment  declar- 
ing the  several  amounts  due  to  each  plaintiff,  from  defendants, 
would  have  been  legal  and  appropriate.  Hence,  as  to  either  of 
the  plaintiffs,  if  the  defendants  had  averred  and  proved  pay- 


Sec.  2.]  New  Matter.  633 

ment  in  full  of  his  share  of  such  proceeds,  the  defense  as  to  such 
plaintiff,  would  have  been  effectual  to  prevent  a  recovery,  and 
yet  the  other  two  plaintiffs  would  have  been  entitled  to  judg- 
ment for  the  several  amounts  of  their  shares. 

For  example,  suppose  the  defendants'  answer  had  admitted 
the  liability  to  account, — admitted  the  amount  of  the  net  pro- 
ceeds, and  the  amount  of  each  share  of  one-fifth, — claimed  to 
retain  two  shares, — admitted  that  one  share  was  due  to  each  of 
certain  two  of  the  plaintiff's, — but,  as  to  the  other  plaintiff, 
averred  that  the  defendants  had  paid  to  him  his  share  in  full. 
This  would,  as  to  such  last  named  plaintiff,  have  been  a  defense, 
and  if  proved,  would  have  prevented  his  recovery. 

The  same  principle  is  applicable  to  a  defense  in  the  nature  of 
a  set-off  or  counterclaim  under  our  Code  of  Procedure. 

By  section  150,  a  counterclaim  must  be  one,  existing  in  favor 
of  a  defendant  and  against  a  plaintiff,  between  whom  a  several 
judgment  might  be  had  in  the  action. 

As  in  the  case  of  payment  to  one  of  the  plaintiffs  of  his  share 
in  full  or  in  part,  the  judgment  might  properly  be  several  in  re- 
spect of  the  amounts  to  be  paid  to  the  other  two  plaintiffs  or  in 
respect  of  a  balance,  if  any,  due  to  the  third,  so  in  the  case  of 
a  counterclaim  in  favor  of  the  defendants  against  either  of  the 
several  plaintiffs. 

The  plaintiffs'  claim  is  undoubtedly  correct,  that  where  the 
cause  of  action  is  strictly  joint,^  and  the  recovery,  if  had,  is  for 
the  joint  benefit  of  the  plaintiffs;  as  for  example,  where  the 
plaintiffs  are  partners,  asserting  the  right  of  the  copartnership 
firm  as  such  to  recover,  and  like  cases, — in  which  it  would  be 
wholly  incompetent  for  the  defendants  to  enter  into  any  at- 
tempt to  state  the  accounts  between  the  plaintiffs,  to  ascertain 
what  portion  of  the  recovery  would  ultimately  inure  to  the 
benefit  of  each — the  defendants  could  not  set  off  or  counter  claim 
the  individual  debt  of  either  plaintiff  to  defeat  or  reduce  a  joint 

9  So  where  the  liability  of  the  jointly  will  not  prevent  one  of 
defendants  is  joint  only,  a  demand  them  from  setting  ud  a  counter- 
in  favor  of  one  or  some  of  them  claim  in  his  own  favor,  though  the 
is  not  available  as  a  counterclaim,  effect  is  necessarily  to  reduce  or 
Coffin  V.  McLean,  80  N.  Y.  560,  extinguish  the  liability  of  all 
(1880).  But  where  the  liability  of  American  Guild  v.  Damon,  186  N. 
the  defendants  is  joint  and  sev-  Y.  360,  (190G). 
eral,   the   fact   that   they   are   sued 


41 


634  The  Answer.  [Chap.  Y. 

recovery;  nor  here,  could  the  separate  or  individual  debt  of 
either  be  set  up  as  a  set-off  or  counterclaim  to  affect  the  several 
right  of  the  other  plaintiffs  to  an  accounting,  or  to  defeat  or 
diminish  their  recovery  of  the  several  amount  of  the  share  due 
to  each  of  them. 

But  where,  by  the  contract  itself,  the  fund  is  divided,  and  one 
share,  specifically  mentioned,  is  due  to  each,  so  that  allowing  the 
set-off  as  to  one  only,  affects  the  judgment  as  between  him  and 
the  defendants,  and  in  no  wise  affects  the  recovery,  in  favor  of 
the  others,  for  the  full  share  due  to  each,  then  the  claim  of  the 
plaintiffs  is  several  within  the  meaning  of  the  section  of  the 
Code  referred  to,  and  a  set-off  or  counterclaim  is  expressly  al- 
lowed. A  judgment  declaring  their  separate  or  several  rights 
is  proper.  No  accounting  between  the  plaiiitiffs  to  settle  their 
respective  interest  in  the  proceeds  is  required,  nor  could  it  ba 
allowed  to  affect  the  rights  of  the  defendants  as  against  each 
plaintiff;  the  plaintiffs'  interests  are  expressly  defined  and  de- 
clared in  the  agreement  upon  which  the  action  is  founded,  viz., 
one-fifth  to  each. 

The  question  here  is,  not  whether  the  right  to  an  account  is 
strictly  joint,  nor  w'hether  the  defendants  could  have  been  sub- 
jected to  three  separate  actions  to  compel  an  accounting  to  each 
plaintiff.  If  it  be  conceded,  for  the  purposes  of  this  appeal,  that 
the  plaintiffs  could  join,  as  they  did,  in  bringing  the  action,  or 
conceding,  even  further,  that  they  must  join,  it  still  remains 
true  that  the  judgment  will  appropriately  award  to  the  plain- 
tiffs severally,  each  one-fifth  part  of  the  proceeds  ascertained 
thereby;  and  payment  to  either  plaintiff  would  defeat  his  claim 
and  leave  the  others  to  have  judgment  awarding  to  each  of  them 
his  share;  and  a  set-off  or  counterclaim  would  have  its  several 
operation  in  like  manner. 

2.  If,  then,  the  claim  of  the  defendants  against  the  plaintiff, 
Hartshorne,  was  one  which,  within  the  provisions  of  the  Code, 
was  a  proper  subject  of  counterclaim,  the  referee  erred  in  re- 
jecting it,  when  he  should  have  allowed  it  against  the  one-fifth 
of  the  proceeds  which  the  defendants  had  agreed  to  pay  to 
Hartshorne. 

The  claim  was  a  judgment  against  the  plaintiff,  Hartshorne, 
recovered,  assigned  to  and  held  by  the  defendants  before  the 
commencement  of  this  action. 

The  Code  of  Procedure,  in  declaring  what  may  be  allowed  as 


Sec.  2.]  Mew  Matter..  635 

a  counterclaim,  provides,  that  a  defendant  may  set  up,  "in  an 
action  on  contract,  any  other  cause  of  action  arising  also  on  con- 
tract, and  existing  at  the  commencement  of  the  action." 

It  appears  by  the  case,  that  the  referee  rejected  the  defend- 
ants' claim,  on  the  ground  that  the  judgment  held  l)y  them 
against  Hartshorne,  was  recovered  in  an  action  "founded  not 
on  contract  but  on  tort,  being  for  slanderous  words  spoken  by 
the  said  Hartshorne"  of  and  concerning  the  plaintiff  therein. 

This  was  erroneous.  The  nature  of  the  action  wherein  the 
judgment  was  recovered  and  the  cause  thereof  were  wholly  im- 
material, and  in  no  manner  affected  the  right  of  counterclaim ; 
the  error  of  the  referee  either  proceeded  upon  a  misapprehen- 
sion of  the  meaning  of  the  Code,  above  cited,  or  it  overlooked 
the  elementary  definitions  in  the  law  of  contracts. 

Contracts  are  of  three  kinds:  simple  contracts,  contracts  by 
specialty,  and  contracts  of  record.  A  judgment  is  a  contract  of 
the  highest  nature  known  to  the  law.  Actions  upon  judgment 
are  actions  upon  contract.  (See  Blackstone,  Chitty,  Addison, 
Story,  Parsons,  or  any  other  elementary  writer  on  contracts.) 
The  cause  or  consideration  of  the  judgment  is  of  no  possible 
importance;  that  is  merged  in  the  judgment.  "When  recovered, 
the  judgment  stands  as  a  conclusive  declaration  that  the  plain- 
tiff therein  is  entitled  to  the  sum  of  money  recovered.  No  mat- 
ter what  may  have  been  the  original  cause  of  action,  the  judg- 
ment forever  settles  the  plaintiff's  claim  and  the  defendant's 
assent  thereto;  this  assent  may  have  been  reluctant,  but  in  law 
it  is  an  assent,  and  the  defendant  is  estopped  by  the  judgment 
to  dissent.  Forever  thereafter,  any  claim  on  the  judgment  is 
setting  up  a  cause  of  action  on  contract.  It  is  strictly  an  action 
ex  contractu,  if  suit  is  brought  thereon;  it  is  no  less  ex  contractu 
when  set  up  as  a  counter  claim. 

For  this  error  of  the  referee  the  judgment  must  be  reversed, 
and  a  new  trial  ordered  that  the  counter  claim  may  be  allowed. 

Ordered  accordingly. 


636  The  Answer.  [Chap.  V. 

HOPKINS  V.  LANE. 

Court  of  Appeals  of  New  Yorl,  1882.    87  N.  Y.  501. 

Earl,  J.  This  action  was  brought  to  recover  on  a  promissory 
note  given  in  part  payment  of  cheese  sold  by  the  plaintiffs  to 
the  defendant,  Daniel  W.  Lane,  and  to  Darius  W.  Benjamin 
and  Quincy  Matthewson.  The  cheese  was  delivered  and  each 
of  the  purchasers  gave  a  note  for  his  share  of  the  purchase 
money.  This  note  was  given  by  Daniel  W.  for  his  share,  and 
was  signed  by  Victory  L.  Lane  as  surety  for  him.  The  defend- 
ants, in  their  answer,  set  up  a  counter-claim  for  breach  of  war- 
ranty and  fraud  in  the  sale  of  the  cheese.  One  of  the  grounds 
upon  which  the  defendants  were  defeated  as  to  the  alleged  coun- 
ter-claim at  the  trial  was  that  they  could  not  avail  themselves 
of  it,  as  it  belonged  to  the  three  purchasers  jointly.  The  an- 
swer alleged  that  the  sale  of  the  cheese  was  to  the  three  as  joint 
purchasers,  and  that  allegation  was  sustained  by  the  proof. 
There  was  no  proof  showing  that  there  was  a  separate  contract 
with  each  purchaser  or  a  separate  warranty  to,  or  fraud  per- 
petrated upon,  each  purchaser.  For  the  convenience  of  the  pur- 
chasers, and  with  the  consent  of  the  sellers,  the  cheese  was  paid 
for  by  the  separate  notes  properly  secured  of  the  purchasers, 
and,  after  the  notes  were  thus  given,  there  remained  no  joint 
obligation  to  pay  for  the  cheese,  simply  because  it  had  been  paid 
for.  Payment  in  this  mode,  however,  did  not  affect  the  contract 
of  purchase,  or  the  relation  of  the  parties  growing  out  of  the 
joint  purchase.  Any  claim,  therefore,  for  damages,  growing 
out  of  the  breach  of  warranty  or  the  fraud,  belonged  to  the 
three  purchasers  jointly  and  could  not  be  used  by  one  of  them 
as  a  counter-claim.  One  of  them  could  not  have  separately  sued 
the  plaintiffs  to  recover  such  damages,  and  hence  one  of  them 
separately  cannot  set  up  such  damages  as  a  counter-claim  under 
section  150  of  the  code  of  procedure.  As  there  was  no  defense 
to  this  note,  except  by  way  of  counter-claim,  Daniel  W.  Lane 
was  obliged  to  pay  it,  and  the  claim  for  damages  on  account  of 
the  breach  of  warrant  and  fraud  could  be  enforced  only  by  an 
action  in  the  name  of  all  the  purchasers  against  the  sellers.  If 
however,  any  one  of  the  purchasers  refused  to  join  as  plaintiff 
in  such  an  action,  he  could  be  made  a  defendant.    We  are,  there- 


Sec.  2.]  New  Matter.  63? 

fore,  of  the  opinion  that  the  judgment  should  be  affirmed  with 
costs. 

Judgment  affirmed. 


RITCHIE  V.  HAYWARD. 

Supreme  Court  of  Missouri,  1880.    71  Mo.  560. 

Hough,  J.  This  was  a  suit  to  recover  the  value  of  600  gunny 
sacks  alleged  to  have  been  wrongfully  converted  by  the  defend- 
ants to  their  own  use.  The  defendants  admitted  that  the  sacks 
came  into  their  possession,  and  that  they  had  not  returned  the 
same,  and  set  up  by  way  of  counter-claim  that  the  plaintiffs,  at 
the  time  named  in  the  petition,  agreed  to  sell  and  deliver  to  the 
defendants,  on  board  a  steamboat  at  Muscatine,  Iowa,  for  trans- 
portation to  Hannibal,  Mo.,  which  was  then  the  defendants '  place 
of  business,  l,046i/'2  bushels  of  choice  peach-blow  potatoes  in 
gunny  sacks,  at  the  price  of  sixty  cents  per  bushel,  the  said  sacks 
to  be  returned  by  the  defendants  to  the  plaintiffs ;  that,  in  con- 
sideration of  said  agreement,  and  relying  upon  the  honesty  and 
good  faith  of  the  plaintiffs,  the  defendants  then  and  there  paid 
to  the  plaintiffs,  in  advance,  the  sum  agreed  to  be  paid  for  said 
potatoes,  to-wit:  $627.90;  that  the  potatoes  delivered  by  the 
plaintiffs  under  the  said  contract  were  much  inferior  in  quality 
to  the  potatoes  paid  for,  and  agreed  to  be  delivered,  and  were 
delivered  in  the  same  sacks,  to  recover  the  value  of  which  the 
present  suit  was  brought;  that,  by  reason  of  the  failure  of  the 
plaintiffs  to  comply  with  their  contract,  the  defendants  had 
been  damaged  in  the  sum  of  $141,  for  which  sum  they  prayed 
judgment. 

That  portion  of  the  defendants'  ansv.er  setting  up  a  counter- 
claim was,  on  motion,  stricken  out  by  the  court,  on  the  ground 
that  a  counter-claim  founded  upon  a  contract  could  not  be 
pleaded  to  an  action  founded  on  a  tort.  This  ruling  of  the  court 
has  been  assigned  as  error.  The  counter-claim  allowed  by  the 
statute  must  be  one  existing  in  favor  of  the  defendant  and 
against  the  plaintiff,  between  whom  a  several  judgment  might  be 
had  in  the  action,  and  arising  out  of  one  of  the  following  causes 
of  action :    First,  a  cause  of  action  arising  out  of  the  contract  or 


638  The  Answer.  [Chap.  V. 

transaction  set  forth  in  the  petition  as  the  foundation  of  the 
plaintiff's  claim,  or  connected  with  the  subject  of  the  action; 
second,  in  an  action  arising  on  contract,  any  other  cause  of  ac- 
tion arising  also  on  contract  and  existing  at  the  commencement 
of  the  action.    R.  S.  §  3522. 

The  counter-claim  pleaded  by  the  defendants,  if  it  be  such  as 
the  statute  recognizes,  must  fall  within  the  first  class.  If  the 
facts  stated  by  the  defendants  be  true,  they  certainly  have  a 
cause  of  action  against  the  plaintiffs.  It  is  not,  however,  a  cause 
of  action  arising  out  of  any  contract  set  forth  in  the  petition,  for 
no  contract  is  therein  set  forth.  The  facts  set  forth  in  the  peti- 
tion are  that  the  defendants  came  into  the  possession  of  certain 
sacks  belonging  to  the  plaintiffs  and  wrongfully  converted  them 
to  their  own  use.  These  facts  constitute  in  a  legal  sense  a 
"transaction,"  which  is  a  more  comprehensive  term  than  ''con- 
tract." Xenia  Bank  V.  Lee,  7  Abb.  Pr.  372.  The  details  of  the 
transaction,  the  evidential  facts,  are  not  stated,  but  the  ultimate 
facts  only,  those  which  will  entitle  the  plaintiffs  to  relief,  when 
established  by  other  facts  proved  at  the  trial.  It  is  plain,  how- 
ever, that  the  word  "transaction"^"  as  employed  in  the  code 
cannot  be  restricted  to  the  simple  statement  of  the  wrong  com- 
plained of  by  the  plaintiff,  for  it  would  seem  to  be  impossible 
that  a  cause  of  action  could  accrue  to  the  defendant  out  of  an 
injury  inflicted  by  him  upon  the  plaintiff.  It  must  be  held  to 
include,  therefore,  all  the  facts  and  circumstances  out  of  which 
the  injury  complained  of  by  him  arose,  and  if  these  facts  and 
circumstances  also  furnished  to  the  defendant  a  ground  of  com- 
plaint, or  cause  of  action,  against  the  plaintiff,  the  defendant 
will  be  entitled  to  present  such  cause  of  action  as  a  counter- 
claim, showing  by  proper  averments  that  it  is  a  part  of  the  same 

10  See  also  McGregor  v.  Auld,  82  other  eases  there  is  no  provision 
Wis.  539,  (1892),  where  in  an  ac-  for  counterclaims  except  those  aris- 
tion  for  the  contract  price  of  ing  out  of  the  same  transaction, 
threshing,  a  counterclaim  was  sus-  etc.,  Walburger  v.  Koenig,  62  Wis. 
tained  for  damages  caused  by  the  558,  (1885);  Caldwell  v,  Kyan,  210 
negligence  of  the  plaintiff  in  per-  Mo.  17,  (1908).  See  similar  prob- 
mitting  fire  to  escape  from  his  lem  in  the  joinder  of  tort  and  con- 
threshing  engine.  tract    claims   in    the    complaint    as 

In  actions  on  a  contract  the  stat-  arising    out    of   the    same    transac- 

ute  expressly  allows  counterclaims  tion,  etc.     Craft  Refrigerating  Co. 

based  on  the  same  contract,  or  on  v.  Brewing  Co.,  63  Conn.  551,  ante 

disconnected     contracts.       But     in  p.   397. 


Sec.  2.]  New  Matter.  639 

transaction  which  is  made  the  foundation  of  the  plaintiff's  claim. 
In  this  view  of  the  case,  it  is  immaterial  what  form  of  action  is 
adopted  by  the  plaintiff.  As  is  said  by  Mr.  Pomeroy  in  his 
treatise  on  remedies,  "Whenever  the  facts  are  such  that  an  elec- 
tion is  given  to  the  plaintiff  to  sue  in  form  either  for  a  tort  or 
on  contract,  and  if  he  sues  on  contract  the  defendant  may  coun- 
ter-claim damages  for  the  breach  of  that  contract,  the  same 
counter-claim  may  also  be  interposed  when  the  suit  is  in  form 
for  the  tort;  the  facts  being  exactly  the  same  in  both  phases  of 
the  action,  the  counter-claim  would  clearly  arise  out  of  the  real 
transaction  which  was  the  foundation  of  the  plaintiff's  de- 
mand." §  788.  Had  the  plaintiffs  sued  on  the  contract  set  up 
by  the  defendants,  no  possible  objection  could  have  been  made 
to  the  defenadnts'  counter-claim.  The  statute,  in  our  opinion, 
preserves  their  right  to  set  it  up,  although  the  plaintiffs  have 
elected  to  sue  for  a  conversion  of  the  sacks,  and  not  for  a  breach 
of  the  contract  to  return  them.  Vide  McAdow  v.  Ross,  53  Mo. 
199.  The  judgment  will  be  reversed,  and  the  cause  remanded. 
The  other  judges  concur. 


DIETRICH  V.  KOCH. 
Supreme  Court  of  Wisconsin,  1874.     35  Wis.  618. 

Action  to  vacate  certain  judgments  on  equitable  grounds. 

The  defendants  Emelie  Koch  and  Bertha  Lins  answered 
jointly,  admitting  certain  allegations  not  necessary  to  be  stated, 
and  denying  all  the  other  allegations  contained  in  the  complaint. 

The  answer  then  proceeds  at  great  length  (and  this  is  the 
portion  demurred  to),  to  state  many  facts  and  circumstances 
upon  which  is  predicated  a  counterclaim  praying  that  the  deed 
of  May  9th,  1870,  from  Carl  Dietrich  to  his  son,  the  plaintiff, 
be  set  aside  and  adjudged  void,  and  the  property  therein  de- 
scribed distributed  among  the  heirs  of  Carl  Ditrieh  and  his  wife, 
the  defendants  who  answer  being  two  of  such  heirs.  All  of  the 
averments  of  this  portion  of  the  answer  relate  exclusively  to 
such  counterclaim.  For  reasons  which  appear  in  the  opinion 
it  becomes  unnecessary  to  set  out  such  averments  here. 

The  plaintiff  demurred  to  that  portion  of  the  answer  described 


640  The  Answer.  [Chap.  V. 

in  the  last  preceding  paragraph,  on  the  ground  that  it  did 
not  state  facts  sufficient  to  constitute  either  a  defense  or  a  cause 
of  action  by  way  of  counterclaim;  and  the  defendants  appealed 
from  an  order  sustaming  the  demurrer.^    *    *    * 

Lyon,  J. :  The  plaintiff  seeks  by  this  action  to  procure  the 
discharge  of  two  certain  judgments  recovered  against  him  in  the 
year  1863,  and  he  states  in  his  complaint  the  facts  which  he 
claims  entitle  him  to  relief.  The  portion  of  the  answer  de- 
murred to  does  not  controvert  the  right  of  the  plaintiff  to  have 
the  judgment  discharged.  The  allegations  thereof  relate  ex- 
clusively to  the  invalidity  of  the  deed  of  May  9th,  1870,  which 
is  the  subject  of  the  counter-claim  contained  in  the  answer. 
This  portion  of  the  answer  is  pleaded  both  as  a  defense  and  a 
counter-claim,  and  is  demurred  to  as  not  stating  a  defense  to 
the  action  or  a  good  cause  of  action  by  way  of  counter-claim. 

It  is  very  clear  that,  as  distinguished  from  a  counter-claim, 
the  portion  of  the  answer  demurred  to  fails  to  state  facts  con- 
stituting a  defense  to  the  action.  Conceding,  for  the  purposes  of 
the  case,  that,  were  an  action  brought  by  the  other  heirs  of  Carl 
and  Margarethe  Deitrich  against  the  plaintiff  to  annul  the  deed 
of  May  9,  1870,  the  facts  stated  in  the  answer  are  sufficient  to 
entitle  the  plaintiffs  in  such  action  to  the  relief  demanded,  we 
are  brought  to  consider  whether  such  cause  of  action  is  a  proper 
counter-claim  to  this  action.  If  it  is  not,  the  answer  is  demur- 
rable; for  a  demurrer  lies  to  an  answer  containing  a  counter- 
claim, when  it  appears  upon  its  face  that  it  does  not  constitute 
a  counter-claim  to  the  action.  R.  S.,  ch.  125,  Sec.  16,  (Tay. 
Stats.  1441.) 

The  term  counter-claim,  of  itself,  imports  a  claim  opposed  to, 
or  which  qualifies,  or  at  least  in  some  degree  affects,  the  plain- 
tiff's cause  of  action.  It  has  been  held  in  New  York  that  a 
counter-claim,  to  be  valid,  must  to  some  extent  impair,  affect  or 
qualify  the  plaintiff's  right  to  the  relief  to  which  he  would  other- 
wise be  entitled  by  his  action.  In  Matton  v.  Baker,  24  How.  Pr. 
R.  329,  the  court  says:  "A  counter-claim,  to  be  available  to  a 
party,  must  afford  to  him  protection  in  some  way  against  the 
plaintiff's  demand  for  judgment,  either  in  whole  or  in  part.  It 
must,  therefore,  consist  in  a  set-off  or  claim  by  way  of  recoup- 

1  statement  condensed  and  part  sufficiency  of  the  complaint  omit- 
of    the    opinion    dealing    with    the       ted. 


Sec.  3.]  Several  Defenses.  641 

ment,  or  be  in  some  way  connected  with  the  subject  of  the  action 
stated  in  the  complaint.  It  must  present  an  answer  to  the  plain- 
tiff's demand  for  relief,  must  show  that  he  is  not  entitled,  ac- 
cording to  law,  or  under  the  application  of  just  principles  of 
equity,  to  judgment  in  his  favor,  or  to  the  extent  claimed  in  the 
complaint."  (P.  332.)  See  also  Pattison  v.  Richards,  22  Barb. 
143;  and  National  Fire  Ins.  Co.  v.  McKay,  21  N.  Y.  191.  In  the 
latter  case.  Judge  Comstock  uses  the  following  language:  "I 
apprehend  that  a  counter-claim,  when  established,  must  in  some 
way  qualify  or  must  defeat,  the  judgment  to  which  a  plaintiff 
is  otherwise  entitled."  (P.  196.)  That  the  New  York  courts 
have  held  correctly  on  this  subject,  we  entertain  no  doubt  what- 
ever.2 

We  are  unable  to  perceive  that  the  counter-claim  here  inter- 
posed, if  established,  can  qualify  or  in  any  manner  affect  the 
plaintiff's  cause  of  action.  Should  the  defendants  succeed  in 
proving  that  the  deed  of  May  9,  1870,  ought  to  be  annulled,  this 
fact,  of  itself,  will  not  affect  the  plaintiff's  cause  of  action. 
Upon  proper  proofs,  he  will  still  be  entitled  to  have  the  judg- 
ments against  him  discharged.  It  necessarily  follows  that  the 
cause  of  action  stated  in  the  answer  is  not  available  to  the  de- 
fendants as  a  counter-claim  to  this  action.  We  conclude  that  the 
demurrer  is  well  taken,  whether  the  portion  of  the  answer  de- 
murred to  be  regarded  as  a  defense  or  a  counter-claim,  and  this 
renders  it  unnecessary  for  us  to  determine  whether,  if  the  allega- 
tions of  the  answer  are  true,  the  deed  in  question  ought  to  be 
cancelled  in  some  proper  proceeding  for  that  purpose.    *    *    * 

Judgment  affirmed. 


Section  3.    Several  Defenses. 

GARDNER  v.  CLARK, 

Court  of  Appeals  of  New  York,  1860.     21  N.  Y.  399. 

Appeal  from  the  Supreme  Court.    Action  by  the  assignee  of 
one  Adison  Gardner  for  damages  for  the  non-performance  of  a 

8  And  so  in  Hillman  v.  Sommer-  ville,  212   Mo.  415,    (1908). 


642  The  Answer.  [Chap.  V. 

contract  to  sell  and  deliver  a  thousand  bushels  of  barley,  at 
forty-four  cents  per  bushel.  The  barley  was  to  be  delivered  at 
the  store  house  of  one  Dunham,  who  was  Gardner's  agent  for  the 
purpose  of  receiving  and  paying  for  the  same,  and  was  to  be 
paid  for  as  fast  as  it  should  be  delivered. 

The  defendant's  answer  set  up,  among  other  things,  the  de- 
livery of  a  portion  of  the  barley,  and  that  the  defendant  had 
always  been  ready  and  willing  to  deliver  the  residue,  according 
to  the  terms  of  the  contract;  but  that  Gardner  was  not  ready 
or  willing  to  receive  or  pay  for  the  same,  according  to  the  terms 
of  the  contract.  The  evidence  upon  this  point,  and  the  decision 
of  the  judge  at  circuit  founded  thereon,  are  sufficiently  stated 
in  the  following  opinion. 

For  a  further  answer,  the  defendant  averred  that,  in  Novem- 
ber, 1847,  Adison  Gardner,  then  being  the  sole  person  in  interest 
in  the  contract  and  damages  which  are  the  subject  of  this  suit, 
commenced  an  action  in  the  Supreme  Court  against  the  defend- 
ant by  writ  of  capias  ad  respondendum,  commanding  the  sheriff 
to  have  the  body  of  the  defendant  before  &c.,  at,  &c.,  to  answer 
&c.,  in  a  plea  therein  mentioned;  that  the  defendant  was  taken 
and  held  to  answer ;  ' '  and  that,  by  said  writ  and  taking  of  said 
Perkins  Clark  as  aforesaid,  a  former  suit  and  action  at  law  was 
commenced  by  the  said  Adison against  the  said  defend- 
ant for  and  upon  the  same  identical  cause  of  action  in  this  pres- 
ent action  mentioned,  and  that  the  said  former  action  is  pending 
and  not  discontinued."  Upon  the  trial  the  defendant  offered 
proof  in  respect  to  such  former  action,  making  his  offer  in  the 
same  terms  precisely  as  those  of  the  answer.  The  judge,  upon 
the  objection  of  the  plaintiff,  rejected  the  evidence,  holding  that 
such  former  action  was  no  defense,  and  that  the  defendant,  hav- 
ing interposed  a  defense  on  the  merits,  waived  his  defense  of  tlie 
former  action  pending,  and  could  not  prove  his  offer.  The  de- 
fendant took  exception.  The  charge  and  exceptions  thereto  are 
sufficiently  stated  in  the  following  opinion.  The  jury  found  a 
verdict  for  the  plaintiff,  and  the  judgment  entered  thereon  hav- 
ing been  affirmed  at  general  term  in  the  fifth  district,  the  de- 
fendant appealed  to  this  court. 

Selden,  J. :  It  is  quite  certain  that  the  judge  at  the  circuit 
erred  in  supposing  that,  by  including  a  defense  upon  the  merits 
in  the  same  answer  with  the  defense  of  a  former  suit  pending  for 
liie  same  cause  of  action,  the  defendant  had  waived^  the  latter 


Sec.  3.] 


Several  Defenses. 


643 


defense.  A  doubt  at  one  time  existed,  whether  the  Code  had 
abrogated  the  rule  of  the  common  law  which  required  matters 
in  abatement  to  be  first  pleaded  and  disposed  of  before  pleading 
in  bar  to  the  action ;  and  there  were,  in  the  Supreme  Court,  con- 
flicting decisions  upon  the  subject.  The  question,  however,  came 
before  this  court  in  the  case  of  Sweet  v.  Tuttle  (4  Kern.  465), 
where  it  was  held  that  the  Code  provided  for  but  a  single  an- 
swer, in  which  the  defendant  is  required  to  include  every  de- 
fense upon  which  he  relies  to  defeat  the  action.  This  decision 
must  be  considered  as  settling  the  question.  The  only  serious 
inconvenience''  suggested  as  likely  to  result  from  this  construc- 


1  Where  certain  matters  in  abate- 
ment appear  on  the  face  of  the 
pleading,  they  are  waived  unless 
objection  is  taken  by  demurrer, 
and  such  an  objection  can  not  be 
incorporated  in  an  answer,  Jones 
V.  Foster,  67  Wis.  296,  (1886); 
Depuy  V.  Strong,  3  Keyea,  603, 
(1867),  ante  p.   180. 

2  Daniel,  J.,  in  Sheppard  t. 
Graves,  14  How.  505  (U.  S.  Sup. 
1852),  *  *  *  "A  striking  illus- 
tration of  the  mischiefs  flowing 
from  the  departure  from  the  rules 
just  stated,  is  seen  in  the  practice 
attempted  in  the  case  before  us. 
If  it  could  be  imagined  that  the 
plea  to  the  jurisdiction  and  the 
plea  to  the  merits,  could  be  regu- 
larly committed  to  the  jury  at  the 
same  time,  the  verdict  might  in- 
volve the  following  absurdities. 
Should  the  finding  be  for  the  plain- 
tiff, the  judgment  would,  as  to  the 
defendant,  be  upon  one  issue,  that 
of  respondeas  ouster,  and  upon  the 
other,  that  he  pay  the  debt,  as  to 
the  justice  of  which  he  was  com- 
manded to  answer  over.  Should 
the  finding  be  for  the  defendant, 
the  judgment  upon  one  issue  must 
be  that  the  debt  was  not  due,  and 
upon  the  other,  that  the  court 
called  upon  so  to  pronounce,  had 
no    authority    over    the    case.      So 


that  in  either  aspect  there  must, 
under  this  proceeding,  be  made 
and  determined  one  issue,  which  is 
incongruous  with  and  immaterial 
to  the  other.  A  practice,  thus 
fraught  with  confusion  and  per- 
plexity, and  one  endangering  the 
rights  of  suitors,  it  is  exceedingly 
desirable  should  be  reformed,  and 
we  are  aware  of  no  standard  of 
reformation  and  improvement  more 
safe  and  more  convenient  than 
that  which  is  supplied  by  the  time- 
tested  rules  of  the  common  law. 
And  by  one  of  those  rules,  be- 
lieved to  be  without  an  exception, 
it  is  ordained,  that  objections  to 
the  jurisdiction  of  the  court,  or 
to  the  competency  of  the  parties, 
are  matters  pleadable  in  abatement 
only,  and  that  if  after  such  mat- 
ters relied  on,  a  defence  be  inter- 
posed in  bar,  and  going  to  the 
merits  of  controversy,  the  grounds 
alleged  in  abatement  become  there- 
by immaterial,  and  are  waived." 
•     •     * 

In  Supervisors  v.  Van  Thelau, 
45  Wis.  675,  it  was  suggested  that 
in  order  to  avoid  confusion  the 
defence  in  abatement  should  be 
tried  before  the  defence  to  the 
merits.  Compare  Corbett  v.  Casu- 
alty Co.,  135  Wis.  505,  (1908),  to 
the   effect   that    after   a   trial   and 


644  The  Answer.  [Chap.  V. 

tion  of  the  Code  is  that  when  an  answer  embraces  both  a  defense 
in  abatement  and  in  bar,  if  the  jury  find  a  general  verdict,  it 
will  be  impossible  to  determine  whether  the  judgment  rendered 
upon  the  verdict  should  operate  as  a  bar  to  another  suit  for  the 
same  cause  of  action  or  not.^  It  would,  however,  be  the  duty 
of  the  judge  at  the  circuit,  in  such  a  case,  to  distinguish  be- 
tween the  several  defenses  in  submitting  the  cause  to  the  jury, 
and  require  them  to  find  separately  upon  them.  In  that  way,  it 
is  probable  that  the  confusion  which  might  otherwise  result 
may,  in  most  cases,  be  avoided.  At  all  events,  the  Code  admits, 
I  think,  of  no  other  construction. 

The  judge,  therefore,  was  not  justified  in  rejecting  the  evi- 
dence offered  at  the  trial  to  sliow  the  pendency  of  a  former  suit 
for  the  same  cause  of  action,  upon  the  ground  that  this  branch 
of  defense  had  been  waived  by  including  in  the  answer  a  de- 
fense upon  the  merits.*  If,  however,  for  any  other  reason,  the 
evidence  was  inadmissible,  its  exclusion  should  be  sustained. 
The  judge  gave  another  reason  for  rejecting  it,  viz.,  that  "such 
former  action  pending  was  no  defense  to  this  action."    *     *     * 

Judgment  reversed. 


DERBY  V.  GALLOP. 

Supreme  Court  of  Minnesota,  1860.     5  Minn.  119. 

Atwater,  J. :  Gallup  brought  an  action  of  trover,  in  the  dis- 
trict court  of  Ramsey  County,  against  Derby  &  Day,  for  the  tak- 
ing and  conversion  of  certain  personal  property,  of  which  the 
plaintiff  claimed  ownership  and  possession.     The  complaint  al- 

adverse  decision  on  the  defence  to  ment    was    respondeat    ouster,    but 

the     jurisdiction,     the      defendant  when   issue    was   taken    on   a   plea 

waived   that   defence   by   going   on  in  abatement  and  found  for  plain- 

with  the  trial  on  the  merits.  tiff,  the  judgment  was  quod  recu- 

8  Vhen  the  defence  of  pendency  peret,  P.  &  E.  Coal  Co,  v.  Keever, 

of  another  action  has  been  estab-  260  Fed.  534. 

lished,  the  proper  judgment  is  that  4  Accord:     Telephone  Co.  v.  Bee- 

the    action    abate,    Conner    v.   Bk.,  ler,  125  Ky.  366;   Johnson  v.  Det- 

174  Cal.  400,    (1917).     At  common  rick,    152    Mo.    243;     Hurlburt    v 

law  where  a  plea  in  abatement  was  Palmer,   39  Neb.   158. 
held  insufficient  in  law,  the  judg- 


Sec.  3.]  Several  Defenses.  645 

leged  the  value  of  the  property  to  be  $2,636,  and  that  the  plain- 
tiff had  sustained  special  damages  to  the  amount  of  one  thousand 
dollars,  asking  judgment  for  value  and  damages. 

The  answer  contained,  first,  a  general  and  specific  denial  of 
each  and  every  allegation  in  the  complaint.  Second,  for  a  fur- 
ther defense,  the  answer  alleges,  that  the  defendants  were  cred- 
itors of  one  C.  W.  Griggs,  and  sued  out  a  writ  of  attachment 
against  him  in  the  United  States  District  Court ;  that  by  virtue 
of  said  writ,  and  under  the  direction  of  the  plaintiffs  therein, 
the  marshal  of  the  court  did,  on  the  15th  of  August,  1859,  levy 
upon  certain  goods,  and  take  the  same  into  bis  possession,  etc. ; 
that  said  goods  were  taken  from  his  possession  by  the  plaintiff 
by  force ;  and  that,  on  the  18th  of  August,  he  levied  on  certain 
goods  described  in  the  answer;  which  takings  are  alleged  to  be 
the  same  as  those  charged  in  the  complaint.  There  was  a  verdict 
for  the  plaintiff,  on  which  judgment  was  entered  and  motion 
made  to  set  aside  the  same,  which  was  denied.  Defendants  ap- 
peal from  the  order  denying  the  motion  and  judgment. 

The  first  question  presented  is,  as  to  the  admissibility  of  the 
two  separate  defenses  set  up  in  the  answer.  The  judge  charged 
the  jury  that  the  taking  was  admitted  by  the  pleadings,  to  which 
the  defendants  excepted.  If  both  defenses  can  stand,  it  is  evi- 
dent the  charge  was  erroneous,  otherwise,  it  was  correct.  These 
pleas  are  clearly  inconsistent  with  each  other.  Under  the  old 
system  of  pleading,  cases  may  be  found  where  analogous  pleas 
have  been  sustained.  In  Shuter  v.  Page,  11  Johns  196,  non 
cepit,  and  property  in  the  defendant  was  pleaded  in  action  of 
replevin.  The  pleas  were  sustained — the  court,  in  its  opinion, 
not  deciding  the  pleas  were  not  inconsistent,  but  stating  that 
"courts  have  allowed  pleas,  in  many  instances,  apparently  as 
inconsistent  as  those  in  the  present  case."  Even  under  the  old 
system  of  pleading,  it  is  difficult  to  perceive  how  such  a  plea 
could  be  sustained.  But  the  cases  in  which  similar  pleas  have 
been  sustained  have  arisen  under  statutes  (so  far  as  we  have  ex- 
amined) similar  to  that  of  4  Anne  16,  §  4,  which  pro\ndes  that 
"it  shall  be  lawful  for  any  defendant  or  tenant,  in  any  action  or 
suit,  or  for  any  plaintiff  in  replevin,  in  any  court  of  record,  with 
leave  of  the  court,  to  plead  as  many  several  matters  thereto  as 
he  shall  think  necessary  for  his  defense."  The  code  does  not  au- 
thorize such  pleading,  nor  any  fictitious  pleading;  and  the  de- 
cision of  this  question  must  depend  upon  the  construction  to  be 


646  The  Answer.  [Chap.  V. 

given  to  the  provisions  of  the  code  on  the  subject  of  pleading. 

The  authorities  under  the  code  upon  this  point  are  conflicting. 
Among  those  sustaining  the  principle  here  contended  for,  see 
Lansing  v.  Parker,  9  How.  Pr.  R.  288 ;  Hollenbeck  v.  Clow,  id. 
289 ;  Hackley  et  al.  v.  Ogmun,  10  How.  Pr.  44 ;  Stiles  v.  Com- 
stock,  9  How.  Pr.  R.  48;  and  contra,  Roe  v.  Rogers,  8  How.  Pr. 
R.  356 ;  Arnold  v.  Dimon,  4  Sandf .  680 ;  Schneider  v.  Sehultz, 
id.  664;  Lewis  v.  Kendall,  6  How.  Pr.  R.  59 ;  Ormsby  v.  Douglas, 
2  Abb.  Pr.  R.  407.     It  is  not  difficult  to  understand  how  these 
contradictory  decisions  have  occurred  under  the  code.     They 
are  the  result,  on  the  one  hand,  of  a  desire  to  adapt  the  former 
system  of  pleading  to  the  provisions  of  the  code,  and  to  recognize 
the  binding  force  of  authorities  under  that  system ;  and,  on  the 
other,  to  make  the  present  system  of  pleading  conform  to  the 
provisions  of  the  code  in  its  spirit,  as  well  as  letter,  ignoring,  if 
need  be,  to  effect  this  object,  decisions  which  might  have  weight 
under  the  former  system.    And  I  cannot  but  here  remark,  that 
had  there  been  a  disposition  manifested  by  all  the  courts,  in  the 
states  where  the  code  has  been  adopted,  to  co-operate  in  giving 
full  force  and  effect  to  the  changes  introduced  by  it,  instead  of 
adhering  with  such  pertinacity  to  the  former  system,  and  ham- 
pering the  new  with  restrictions  contrary  to  its  manifest  intent, 
the  code  would  have  become  more  effective  in  the  administration 
of  justice,  or,  at  least,  its  merits  and  demerits  would  have  been 
more  satisfactorily  tested.     It  may  still  be  an  open  question 
whether  the  system  embraced  in  the  code  shall  prove  more  suc- 
cessful in  eliminating  truth  from  error  than  that  which  formerly 
obtained,  but  so  long  as  it  prevails,  it  should  be  administered 
by  the  courts  in  accordance  with  its  letter  and  spirit,  and  so  as 
to  earrj^  out,  as  far  as  practicable,  the  intent  of  its  framers. 

Referring,  then,  to  the  code,  we  find  that  one  of  the  most  im- 
portant changes  effected  by  it,  is  the  abolition  of  all  fictitious 
pleading,  and  requiring  facts  to  be  stated,  whether  as  constitut- 
ing the  cause  of  action,  or  ground  of  defense.  In  regard  to  the 
complaint,  the  principle  is  stated  in  direct  terms,  the  plaintiff 
being  required  to  state  "the  facts  constituting  the  cause  of 
action;"  and,  although  the  language  in  regard  to  the  answer  is 
not  precisely  the  same,  yet  it  is  entirely  clear  that  the  intent  of 
the  code  is  to  allow  the  defendant  to  plead  only  the  facts  consti- 
tuting his  ground  of  defense.  For  it  is  not  to  be  supposed  that 
any  advantage  is  to  be  given  to  the  defendant  over  the  plaintiff 


Sec.  3,]  Several  Defenses.  647 

in  pleading,  and  the  answer  is  required  to  be  verified  whenever 
the  complaint  is.  The  paramount  object  of  the  change  effected 
by  the  code  is  to  require  truth  in  pleading.  If  this  could  be  com- 
pletely attained  much  of  the  cumbrous  machinery  of  courts 
could  be  dispensed  with,  jury  trials  would  no  longer  be  neces- 
sary, and  nothing  would  be  required  save  the  application  of 
principles  of  law  to  the  facts  stated.  But,  if  absolute  truth  in 
pleading  be  unattainable,  courts  may  at  least  prevent  parties 
from  spreading  upon  the  record  pleas  which  prove  their  own 
falsity,  or  from  deriving  advantage  from  such  as  are  inconsist- 
ent with  themselves.  It  is  true  the  code  provides  that  "the  de- 
fendant may  set  forth  by  answer  as  many  defenses  as  he  shall 
have;"  but  this  provision  must  be  understood  with  the  restric- 
tion that  those  defenses  must  be  true — that  they  must  be  such  as 
the  facts  to  be  proved  will  sustain.  The  object  of  the  provision 
is  not  to  enable  the  defendant  to  defeat  the  action  at  all  hazards, 
but  to  afford  him  the  opportunity  of  pleading  such  facts  as 
actually  exist,  or  can  be  proved,  constituting  a  defense.  To 
hold  otherwise  would  be  in  direct  conflict  with  the  manifest  in- 
tent of  this  system  of  pleading,  and  lead  to  the  most  serious 
abuses. 

In  the  case  at  bar,  the  defendants  have  denied,  in  the  first 
place,  every  allegation  of  the  complaint,  thus  putting  in  issue 
both  the  right  of  property  in  the  plaintiff,  and  the  taking  of  the 
goods  by  the  defendant.  This  plea,  if  true,  constitutes  a  perfect 
defense  to  the  action.  The  taking  of  the  goods  constituted  the 
gist  of  the  action,  and  from  the  nature  of  the  case,  the  defend- 
ants must  know  whether  the  plea  denying  the  taking  was  true  or 
false.  If  true,  no  other  defense  was  necessary,  and  even  had 
another  or  others  existed,  consistent  with  this,  it  would  have  but 
encumbered  the  record  with  useless  issues  to  plead  them,  though 
in  such  case  permissible.  But  the  defendants,  in  their  second 
plea,  expressly  admit  the  taking  the  goods,  alleging  them  to 
belong  to  one  Griggs,  and  justify  the  taking  under  process.  The 
only  part  of  this  plea,  inconsistent  with  the  former,  is  that  in 
relation  to  the  taking  of  the  property.  The  allegation  that  the 
property  belonged  to  Griggs,  and  that  in  regard  to  the  value,  are 
not  in  conflict  with  the  previous  denials.  But  in  regard  to  the 
taking,  it  is  obviously  impossible  that  both  pleas  should  be  true, 
and  no  process  of  legitimate  reasoning  can  make  them  appear 
consistent.    If  the  same  weight  is  to  be  allowed  to  the  admission, 


648  The  Answer.  [Chap.  V. 

as  to  the  denial,  of  the  taking,  it  leaves  them  equally  balanced, 
or,  rather,  the  one  would  destroy  the  other,  leaving  the  charge 
in  the  complaint  undenied.  But,  in  fact,  the  admission  of  the 
taking  is  entitled  to  more  weight  than  the  denial,  for  it  is  a 
familiar  rule  of  pleading,  that  each  party's  pleading  is  to  be 
taken  most  strongly  against  himself,  and  most  favorably  to  his 
adversary.  And  thus,  I  think,  the  plaintiff  is  entitled  to  the 
benefit  of  the  admission  of  the  taking,  as  the  pleas  stand,  and 
that  there  is  no  necessity  for  a  motion  to  strike  out,  or  to  compel 
the  party  to  elect  by  which  he  will  abide. 

The  reasoning  by  which,  in  the  cases  above  cited,  similar  pleas 
have  been  sustained,  is  to  my  mind  entirely  unsatisfactory,  and 
ignores  the  true  principles  of  pleading,  as  established  by  the 
code.  The  learned  justice  (Shankland)  who  delivered  the 
opinion  in  Stiles  v.  Comstock,  has  made  an  able  plea  for  the 
defendant,  and  showed,  perhaps,  that  the  principle  there  con- 
tended for  was  recognized  under  the  old  system,  though  his  ar- 
gument seems  entirely  to  overlook  the  idea  that  truth  is  essential 
to  a  pleading  under  the  code.  He  supposes  that  the  plaintiff 
may  prove  a  cause  of  action  which  never  actually  existed,  and 
that  the  defendant  should  be  permitted  to  frame  his  plea  to  meet 
such  supposable  case,  and  also  to  deny  the  actual  existence  of 
the  fact  alleged.  It  is,  perhaps,  sufficient  to  remark,  that  gen- 
eral rules  of  pleading  cannot  be  framed  to  meet  these  extreme 
and  exceptional  cases;  and  that,  although  a  case  might  be  sup- 
posed where  a  defendant  would  suffer  injury  by  the  commission 
of  perjury  against  him,  the  evil  would  be  far  greater  to  allow 
him  to  deny  an  actual  fact,  and  yet  to  derive  the  same  advantage 
from  a  plea  admitting  the  existence  of  the  fact.  I  cannot  per- 
ceive upon  what  principle  this  rule  of  pleading  can  obtain,  un- 
less it  be  held  that  the  code  was  designed  to  furnish  the  de- 
fendant with  the  means  of  defeating  his  adversary,  per  fas  aut 
nefas.  We  have  to  some  extent  recognized  the  rule  here  adopted, 
in  Mason  &  Craig  v.  Hey  ward,  3  Minn.  (182),  and  Bergfield 
V.  McClung,  etc.,  4  Minn.  (148).    *     *     * 

Judgment  affirmed. 


Sec   3.]  Several  Defenses.  649 

BUHNE  V.  CORBETT. 

Supreme  Court  of  California,  1872.     43  Cal.  264. 

By  the  Court,  Wallace,  C.  J. : 

This  action  was  brought  to  recover  the  possession  of  a  tract 
of  land  situate  in  the  County  of  Humboldt.  The  pleadings  are 
verified.  The  complaint  alleges  that  the  plaintiff  is  the  owner 
in  fee  of  the  premises  which  are  described,  and  that  the  defend- 
ants "on  the  2nd  day  of  February,  1870,  entered  into  the  pos- 
session of  the  demanded  premises  above  described,  and  have  ever 
since  and  still  do  unlawfully  withhold  the  possession  thereof 
from  the  plaintiff,"  etc.,  concluding  with  the  usual  prayer  for 
judgment.    The  answer  is  as  follows : 

"Now  comes  Joseph  Corbett,  John  Doe  (Walter  Cutler),  and 
Richard  Roe  (E.  H.  Pinney),  defendants  in  the  above  entitled 
action,  and  answering  the  complaint  of  the  plaintiff  herein,  on 
their  information  and  belief  deny  that  on  the  1st  day  of  Febru- 
ary, 1870,  or  at  any  other  time,  the  plaintiff  was,  or  now  is,  or 
ever  has  been,  the  owner  of,  or  seized  in  fee,  or  entitled  to  the 
possession  of  the  tract  of  land  described  in  said  complaint,  or 
any  part  thereof ;  and  deny  that  on  said  day,  or  any  other  time, 
the  defendants  entered  into  the  possession  of  the  same,  or  an.y 
part  thereof,  or  that  they  ever  withheld,  or  now  withhold  the 
possession  of  the  same,  or  any  part  thereof,  from  the  plaintiff. 
Further  answering,  the  said  defendants  aver  that  from  the  year 
A.  D.  1848,  down  to  the  23rd  day  of  May,  A.  D.  1867,  inclusive, 
the  tract  of  land  described  in  the  plaintiff's  complaint,  was  pub- 
lic land  of  and  belonging  to  the  United  States,  and  that  on  the 
day  last  named,  and  prior  thereto,  by  orders  of  the  President  of 
the  United  States,  one  bearing  date  of  that  day  and  another 
thereto,  and  in  due  course  of  law,  the  said  lands,  and  the  whole 
thereof,  was  reserved  to  the  United  States  for  lighthouse  pur- 
poses, and  from  thence  hitherto  have  remained,  and  still  do 
remain  so  reserved  for  the  purposes  aforesaid ;  and  that  during 
all  of  said  time,  from  the  year  1848  hitherto,  the  United  States 
has  been  and  still  is  the  owner  in  fee  and  seized  of  said  land 
and  every  part  thereof. 

"That  from  the  23rd  day  of  May,  1867,  hitherto,  the  United 
States  has  continuously  occupied  and  possessed  said  lands  for 
lighthouse  purposes  aforesaid,  and  has  erected  a  lighthouse  and 


650  The  Answer.  [Chap.  Y. 

light,  and  other  improvements  thereon,  for  the  protection  and 
safety  of  ships  and  other  vessels  navigating  the  waters  of  the 
Pacific  Ocean,  at  an  expense  of  about  one  hundred  thousand 
dollars. 

''That  the  said  defendants  are  the  keepers  of  the  light  and 
lighthouse  aforesaid,  employed  for  that  purpose  by  the  said 
United  States,  at  stipulated  wages,  and  that  they  are,  as  such 
keepers,  the  mere  servants  and  employes  of  the  said  United 
States,  subject  at  any  and  all  times  to  the  orders,  directions,  and 
commands  of  the  said  United  States  and  certain  of  the  officers 
thereof,  and  to  be  discharged  and  removed  from  such  service  and 
employment. 

' '  That  as  such  lighthouse  keepers,  and  under  and  in  obedience 
to  the  orders,  directions,  and  commands  of  the  said  United 
States  and  officers,  these  defendants,  as  such  servants  and  em- 
ployes for  the  year  last  passed,  have  been  and  still  are  in  the 
temporary  charge  of  the  light  and  lighthouse  buildings  on  said 
land  for  the  sole  purpose  of  keeping  the  liglit  burning  at  proper 
times,  and  keeping  the  said  lighthouse  building  in  proper  repair, 
all  in  performance  of  and  in  obedience  to  the  duties  of  keepers 
as  aforesaid,  as  the  same  are  regulated  and  prescribed  by  the 
said  United  States  and  officers. 

"The  said  defendants  further  aver  that  they  do  not  now 
nor  have  they  ever  claimed  or  had  any  interest  in  said  land  or 
improvements,  or  any  part  thereof;  and  that  from  the  time  of 
the  reservation  aforesaid  the  United  States  by  and  through 
these  defendants  and  other  of  its  servants  and  employes,  has  con- 
tinually been  and  still  is  in  the  sole  and  exclusive  possession  and 
occupation  of  the  said  land  and  improvements,  and  every  part 
thereof. 

"Wherefore  the  defendants  pray  that  they  be  hence  dis- 
missed, and  that  they  may  have  judgment  against  the  plaintiff 
for  costs  of  suit." 

At  the  trial,  the  plaintiff  offered  no  evidence  whatever  touch- 
ing the  alleged  fact  of  the  possession  of  the  defendants,  and,  on 
motion  of  the  defendants,  a  judgment  of  non-suit  was  rendered, 
on  the  ground  "that  the  plaintiff  has  not  shown  the  defendants 
to  have  been  in  the  possession  of  the  said  premises  at  the  com- 
mencement of  this  action,  or  at  any  other  time;"  and  from  that 
judgment  this  appeal  is  brought. 


Sec.  3,]  Several  Defenses.  651 

We  are  of  opinion  that  the  non-suit  was  correct  upon  the 
pleadings. 

The  Practice  Act  (Sec.  49)  provides  as  follows:  "The  de- 
fendant may  set  forth  by  answer  as  many  defenses  and  counter- 
claims as  he  may  have.  They  shall  each  be  separately  stated, 
and  the  several  defenses  shall  refer  to  the  causes  of  action  which 
they  are  intended  to  answer,  in  a  manner  by  which  they  may  be 
intelligibly  distinguished." 

It  will  be  observed  that  the  answer  here,  in  the  first  defense 
set 'forth,  distinctly  denies,  "that  on  said  day,  or  any  other  time, 
the  defendants  entered  into  the  possession  of  the  same,  or  any 
part  thereof,  or  that  they  ever  withheld,  or  now  withhold,  the 
possession  of  the  same,  or  any  part  thereof,  from  the  plaintiff ; ' ' 
and  while  it  is  possible  that,  under  strict  rules  applicable  to 
verified  answers,  an  objection  might  have  been  made  to  the  suf- 
ficiency of  this  denial  in  a  single  particular,  none  such  was, 
in  fact,  made  below,  nor  has  any  been  pointed  out  here. 

After  this  denial,  the  defendants,  ' '  further  answering, ' '  make 
certain  affirmative  averments,  in  the  course  of  which  they  set 
up  that  they  are  in  charge  of  the  lighthouse  on  the  premises  as 
the  employes  of  the  United  States,  etc. ;  and  it  is  upon  the  effect 
of  these  averments  in  pleading  that  we  understand  the  plaintiff 
to  claim  that  he  was  relieved  from  the  necessity  of  proving  that 
the  defendants  were  in  possession  at  the  time  the  action  was  com- 
menced. 

1.  Assuming  that  the  defenses,  as  thus  pleaded,  were  incon- 
sistent upon  the  point  of  the  possession  of  the  defendants,  it 
would  not  follow  that  the  plaintiff  would  be  at  liberty  to  dis- 
regard them,  or  either  of  them,  at  the  trial.  If  he  desired  to  pre- 
sent that  question,  he  should  have  moved  to  strike  out  the  one  or 
the  other,  or  applied  for  an  order  compelling  the  defendants  to 
elect  as  to  which  particular  one  of  them  they  would  rely  upon. 
(Klink  V.  Cohen,  13  Cal.  623;  Uridias  v.  Morrill,  25  Cal.  31.) 

2.  But  even  had  he  by  motion  presented  the  question  of  the 
supposed  inconsistency  of  the  several  defenses  in  the  answer,  we 
think  that  it  would  not  have  availed  him.  A  party  defendant  in 
pleading  may  plead  as  many  defenses  as  he  may  have.  If  a 
plea  or  defense  separately  pleaded  in  an  answer  contain  several 
matters,  these  should  not  be  repugnant^  or  inconsistent  in  them- 

6  Berry,  J.,  iu  Cook  v.  Fincli,  19      set    up   in    their    answer    that    the 
Minn.  407:     *     *     »     "Defendants     contract,  upon  which  the  plaintiffs 


652  The  Answer.  [Chap.  V. 

selves.  But  the  plea  or  defense  regarded  as  an  entirety,  if  it 
be  otherwise  sufficient  in  point  of  form  and  substance,  is  not  to 
be  defeated  or  disregarded  merely  because  it  is  inconsistent  with 
some  other  plea  or  defense  pleaded.^  And  there  is  no  distinction 
in  this  respect  between  pleadings  verified  and  pleadings  un- 
verified. (Bell  V.  Brown,  22  Cal.  672;  Wilton  v.  Cleveland,  30 
Cal.  192.) 

We   are,  therefore,   of  opinion   that  the   judgment   must  be 
affirmed,  and  it  is  so  ordered. 


RHINE  V.  MONTGOMERY. 
Supreme  Court  of  Missouri,  1872.     50  Mo.  566. 

Adams,  Judge,  delivered  the  opinion  of  the  court: 

This  was  an  action  for  assault  and  battery.  The  answer  sets 
up  three  separate  defenses:  First,  a  denial  of  the  assault  and 
battery;  second,  that  the  plaintiff  made  the  first  assault,  which 
was  repelled  by  the  defendant  in  self-defense;  third,  that  the 
defendant  was  in  his  own  dwelling,  and  the  plaintiff  was  un- 
lawfully there,  and  refused  to  leave,  and  he  used  sufficient  force 
to  put  him  out,  and  only  such  force  as  was  necessary.  The  rec- 
ord does  not  show  that  any  replication  was  filed  to  the  second 
and  third  defenses. 

The  jury  found  a  verdict  for  the  plaintiff,  and  a  motion  for  a 
new  trial  was  made  and  overruled.  The  court,  at  the  instance 
of  the  plaintiff,  and  against  the  objections  of  the  defendant, 
gave  several  instructions  to  the  jury.  But  we  are  only  called 
upon  to  examine  the  first  instruction,  which  reads  as  follows : 

"The  defendant's  answer  admits  the  assault  and  battery  upon 
the  plaintiff,  with  all  the  aggravated  injuries  to  plaintiff,  as 

complain,  was  "revoked,  annulled,  stand.      Conway    v.    Wharton,    13 

and    modified."      As    the    contract  Minn.   160   (Gil.  145)."     *     *     • 
could  not  be  revoked,  and  annulled,  6  And   so   in   U.    S.    Vinegar    Co. 

and     also    modified,    the    defences  v.  Schlegel,  143  N.  Y.  537,  (1894), 

thus  set  up  were  inconsistent,  and  denial   of   plaintiff's   incorporation 

we  see  no  reason  why  defendants  joined  with  a  plea  that  it  was  in- 

were    not    properly    compelled    to  corporated   for   an   illegal  purpose, 
elect,     upon     which     they     would 


Sec.  3.]  Several  Defenses.  653 

charged  by  plaintiff  in  his  petition;  and  unless  the  jury  shall 
believe  from  the  evidence  in  the  cause  that  the  defendant  was 
either  excusable  or  justifiable  in  making  such  assault  and  bat- 
tery, they  will  find  for  the  plaintiff,  and  assess  to  him  such  dam- 
ages against  the  defendant  as  under  all  the  circumstances  they 
may  think  proper,  not  exceeding  $2,000;  and  in  estimating  the 
damages  they  may  take  into  consideration  the  pain,  sufferings, 
and  mental  anguish  and  wounded  feelings  of  the  plaintiff  in 
consequence  of  such  assault  and  battery." 

Under  the  pleadings  as  they  stand  here,  it  is  difficult  to  per- 
ceive upon  what  principle  this  instruction  was  allowed.  It  as- 
serts that  plaintiff's  entire  case  was  admitted  by  the  answer,  and 
under  it,  all  the  plaintiff  was  bound  to  do  was  to  read  his  peti- 
tion to  the  jury  and  rest.  The  court  may  have  acted  on  the 
mistaken  theory  that  the  positive  denial  of  the  trespass  was 
waived  by  the  subsequent  supposed  additions  of  the  pleas  of 
justification.  Our  present  code  of  practice,  like  the  old  system 
of  pleading,  permits  several  consistent  defenses  to  be  set  up  in 
the  same  answer.  The  only  question,  therefore,  is  whether  these 
defenses  were  consistent  with  each  other.  The  three  defenses 
amounted  in  substance  to  the  old  pleas  of  not  guilty — son  assault 
demesne,  and  mollitur  manus  imposuit. 

The  trespass  complained  of  is  an  unlawful  battery.  The  de- 
fendant's first  defense  is  a  denial  of  the  alleged  trespass.  The 
second  and  third  defenses  are  justifications  of  the  defendant's 
acts,  and  are  in  no  sense  express  or  implied  admissions  that  they 
were  unlawful.  The  three  defenses  are  clearly  consistent,  both 
at  common  law  and  under  our  statute.  (Nelson  v.  Brodhack,  44 
Mo.  596;  Lansing  v.  Parker,  9  How.  Pr.  288.) 

But  there  were  no  replications  to  the  new  matter  contained  in 
the  defendant's  pleas  of  justification,  and  under  our  statute  all 
the  material  allegations  of  new  matter  not  controverted  by  the 
reply  are,  for  the  purposes  of  the  action,  to  be  taken  as  true. 
(Wagn.  Stat.  1019,  §  36.)  The  instruction  referred  to  errone- 
ously assumed  that  the  new  matter  had  been  controverted  by 
the  reply.  This  was  obviously  a  mere  oversight,  and  the  replies 
were,  no  doubt,  unintentionally  omitted,  and  may  be  supplied  at 
any  time  by  permission  of  the  court  before  trial. 

Judgment  reversed  and  the  cause  remanded.  The  other 
judges  concur. 


654  The  Answer.  [Chap.  V. 

^  SOUTH  MILWAUKEE  CO.  v.  HARTE. 

Supreme  Court  of  Wisconsin,  1897.    95  Wis.  592. 

This  is  an  action  to  recover  the  second  instalment  upon  a 
land  contract.  On  the  12th  day  of  December,  1892,  the  plaintiff 
company  entered  into  a  written  contract  with  the  defendant  to 
sell  him  a  certain  lot  of  land  in  the  village  of  South  Milwaukee 
for  the  sum  of  $375,  to  be  paid  in  four  equal  annual  instal- 
ments ;  the  first  instalment  to  be  paid  at  the  date  of  the  contract 
and  others  annually  thereafter,  with  interest  on  the  deferred 
payments.  The  defendant  made  the  first  payment  of  $93.75  at 
the  date  of  the  contract,  but  refused  to  make  the  second  pay- 
ment, which  fell  due  December  12th,  1893,  and  also  refused  to 
pay  the  taxes  upon  the  lot  for  the  year  1893,  which  by  the  agree- 
ment he  was  required  to  pay.  Upon  this  refusal  this  action 
was  brought  to  recover  such  second  payment,  with  the  amount 
of  such  taxes,  with  interest.  The  complaint  is  in  appropriate 
form  for  the  recovery  of  said  sums.  The  answer  sets  up  as  a 
defense  that  the  land  contract  was  obtained  hy  false  and  fraud- 
ulent representations  to  the  effect  that  an  adjoining  block  had 
been  purchased  and  paid  for  in  full  by  Frederick  Pabst,  who 
had  agreed  to  build  certain  extensive  buildings  thereon  in  the 
following  spring,  and,  further,  that  the  plaintiff  had  entered 
into  a  bond  to  the  county  of  Milwaukee  to  grade,  gravel,  and 
sidewalk  the  street  upon  which  the  lot  was  situated  prior  to 
May  1,  1895.  The  answer  further  alleged  that  the  defendant 
had  rescinded  the  contract.  The  answer  also  contained  two 
counterclaims:  First,  a  counterclaim  to  recover  $93.75,  paid  at 
the  date  of  the  contract,  with  interest,  on  the  ground  that  the 
contract  was  induced  by  false  and  fraudulent  representations, 
and  had  been  rescinded ;  and,  second,  a  counterclaim  to  recover 
damages  for  breach  of  the  contract,  by  reason  of  the  failure  of 
the  plaintiff  to  grade,  gravel,  and  sidewalk  the  street.  The 
plaintiff,  by  his  reply,  alleged  that  the  defendant,  by  his  second 
counterclaim,  waived  any  and  all  rights  he  may  have  had  to 
rescind  the  contract,  and  that  by  such  second  counterclaim  he 
had  affirmed  and  ratified  said  contract.  Further  replying,  the 
plaintiff  admitted  that  the  grading,  graveling,  and  laying  of 
sidewalks  upon  said  street  had  not  been  completed,  but  alleged 


Sec.  3.]  Several  Defenses.  655 

that  the  work  was  progressing,  and  would  be  completed  as  fast 
as  necessity  existed. 

Upon  the  trial  the  plaintiff  demurred,  ore  tenus,  to  the  answer 
and  counterclaims,  which  being  overruled,  the  plaintiff  moved 
to  strike  out  the  defense  because  it  was  inconsistent  with  the 
counterclaims,  and  further  moved  that  the  second  counterclaim 
be  stricken  out  as  inconsistent  with  the  first  counterclaim,  all 
of  which  were  denied  by  the  court,  and  exception  taken.  The 
plaintiff  also  objected  to  the  submission  of  any  evidence  on  the 
first  counterclaim,  on  the  ground  that  the  defendant  was  es- 
topped by  the  admission  of  the  second  counterclaim,  which  ob- 
jection was  also  overruled.  The  trial  resulted  in  a  verdict  for 
the  defendant,  assessing  his  damages  on  the  first  counterclaim 
at  $134.35,  being  the  amount  of  the  first  payment  with  interest 
thereon  from  the  time  of  the  alleged  rescission  of  the  contract. 
From  the  judgment  upon  the  verdict  the  plaintiff  appealed. 

WiNSLOw,  J. — The  appellant's  first  contention  is  that  the 
second  counterclaim  is  inconsistent  with  the  defense  and  with 
the  first  counterclaim,  and  that  the  demurrers  to  the  defense 
and  first  counterclaim  should  have  been  sustained,  and  no  evi- 
dence received  under  them,  on  account  of  such  inconsistency. 
This  contention  must  fail.  It  is  well  settled  that  the  defendant 
may  plead  as  many  defenses  and  counterclaims  as  he  has  al- 
though they  may  be  based  on  inconsistent  legal  theories.  R.  S. 
sec.  2657;  Bruce  v.  Burr,  67  N.  Y.  237;  Pomeroy,  Code  Rem. 
(3d  ed.)  §  722,  and  authorities  cited  in  note;  Maxwell,  Code  PI. 
396,  397.  This  rule  does  not  invade  the  general  principle  that 
the  truth  should  be  pleaded,  nor  the  principle  that  an  admission 
in  an  answer  will  not  be  affected  by  a  repugnant  denial  in  an- 
other part  of  the  same  answer.  Hartwell  v.  Page,  14  Wis.  49. 
While  authorities  may  be  found  stating,  in  general  terms,  that 
inconsistent  defenses  cannot  be  set  up  in  the  same  answer, 
examination  will  show  that  these  are  generally  eases  where  re- 
pugnant allegations  of  fact  are  contained  in  the  different  de- 
fenses, and  where,  consequently,  the  proof  of  one  defense  woukl 
necessarily  disprove  the  other.  There  are  in  the  present  case 
no  repugnant  nor  contradictory  statements  of  fact.  Indeed,  the 
facts  alleged  in  the  defense  and  in  the  counterclaims  are  per- 
fectly consistent  and  harmonious.  The  only  object  of  the  second 
counterclaim  is  to  obtain  damages  for  breach  of  the  contract. 


(J56  The  Answer.  [Chap.  V. 

should  it  be  held  that  it  was  binding,  and  that  there  was  no 
fraud.  This,  we  hold,  may  properly  be  joined  with  a  defense 
or  counterclaim  to  avoid  the  contract  on  the  ground  of  fraud. 

*    *    « 

Judgment  affirmed. 


LEAVENWORTH  L.  &  H.  CO.  v.  WALLER. 

Supreme  Court  of  Kansas,  1902.     65  Kan.  514. 

Plaintiff's  action  was  for  damages  done  by  the  burning  of 
her  barn.  The  petition  charged  ' '  that  the  defendant,  its  officers 
and  agents,  thereunto  duly  authorized  and  empowered,  entered 
into  and  contracted  with  said  plaintiff,  whereby  the  said  defend- 
ant was  to  put  and  place  lights  in  said  barn  for  the  use  of  the 
plaintiff;"  that,  in  putting  in  the  necessary  wires,  the  same  were 
not  large  enough,  nor  properly  insulated,  and  were  placed  care- 
lessly and  negligently,  so  that  the  injury  of  which  she  complains 
resulted.  The  answer  was  first  a  general  denial,  "and,  for  a 
second  and  further  ground  of  defense  herein,  defendant  refers 
to  the  foregoing  part  of  this  answer  as  part  hereof,'  and  further 
avers  that  if  plaintiff  was  in  any  wise  damaged  or  injured  as 
set  forth  in  the  petition,  which  this  defendant  denies,  then  the 
defendant  avers  that  the  plaintiff  and  her  agents,  by  her  duly 
appointed  and  authorized,  so  acted  and  conducted  themselves  as 
to  contribute  to  the  damage  and  injury  complained  of."  For 
reply,  the  plaintiff  filed  a  general  denial.  Upon  these  issues  a 
trial  was  had,  which  resulted  in  a  verdict  and  judgment  for  the 
defendant.  From  it  error  was  prosecuted  to  the  court  of  ap- 
peals. Northern  department,  Eastern  division,  where  the  same 
was  reversed,  and  the  case  remanded  for  further  trial.  See 
Waller  v.  Heating  Co.,  9  Kan.  App.  301  (61  Pac.  327).  A 
second  trial  was  had  upon  the  same  pleadings.  The  defendant 
then  sought  to  show  by  competent  evidence  that  it  was  not  the 
owner  of  the  electric  light  plant  operating  the  lights  in  plain- 
tiff's barn  at  the  time  the  fire  occurred,  but  that  another  and 

1  That  a  denial  should  not  be  in-     other   defence,   see    Carter   v.   Bk., 
corporated  in  the  statement  of  an-    67  N.  Y.  S.  30(1,  (1900). 


Sec.  3.]  Several  Defenses.  657 

separate  corporation,  from  which  plaintiff  subsequently  pur- 
chased, was  at  that  time  the  owner.  This  evidence  was  rejected 
by  the  court  upon  the  objection  of  the  plaintiff.     *    *     * 

Cunningham,  J. :  *  *  *  The  reasons  urged  for  the  exclu- 
sion of  the  evidence  are :  First,  that  the  same  was  irrelevant 
and  immaterial,  because  not  within  the  issues  in  this  case  ;  second, 
that  when  the  case  was  in  the  appellate  court,  defendant's  attor- 
neys admitted  in  their  brief  filed  in  that  proceeding  in  error 
that  the  defendant  was  the  owner  of  the  electric  lighting  plant 
at  the  time  of  the  fire. 

In  support  of  the  first  contention,  it  is  urged,  first,  that  the 
plea  of  contributory  negligence  contained  in  defendant's  second 
defense  was  in  effect  an  admission  that  defendant  caused  the 
damage  complained  of;  that  to  deny  defendant's  negligence  is 
inconsistent  with  the  plea  of  contributory  negligence  on  the  part 
of  the  plaintiff;  that  there  could  be  no  contributory  negligence 
on  the  part  of  the  plaintiff  without  the  antecedent  negligence  on 
the  part  of  the  defendant.  In  the  language  of  the  defendant  in 
error,  * '  The  plea  of  contributory  negligence  is  in  the  nature  of  a 
plea  of  confession  and  avoidance,  and  if  this  be  true,  then  the 
defendant  is  estopped  from  denying  its  identity  as  the  party 
properly  sued."  This  raises  a  novel  and  important  question  in 
our  practice.  It  will  be  observed  that  the  defendant's  answer 
contained  a  general  denial.  This,  standing  alone,  would  have 
put  the  plaintiff  upon  proof  of  all  of  the  material  allegations  in 
her  petition.  One  of  these  allegations  was  that  the  defendant's 
negligence  was  the  cause  of  her  injury.  She  was  thereby  re- 
quired to  establish  not  only  negligence,  but  to  connect  the  de- 
fendant with  such  negligence  by  showing  its  ownership  of  the 
electric  light  plant  at  the  time  of  the  injury.  Railway  Co.  v. 
Searle,  11  Colo.  1  (16  Pac.  328)  ;  Jackson  v.  Water  Co.,  14  Cal. 
19;  Schular  v.  Railroad  Co.,  38  Barb.  653;  Greenway  v.  James, 
34  Mo.  328.  This  she  sought  to  do  in  making  her  case,  by  intro- 
ducing evidence  that  the  defendant  was  the  owner  of  the  electric 
light  plant  at  that  time.  This  denial,  standing  alone,  would  not 
only  require  this  proof  at  the  hands  of  the  plaintiff,  but,  per 
contra,  permit  the  defendant  to  disprove  this  material  matter. 
Davis  V.  McCrocklin,  34  Kan.  218  (8  Pac.  196).  It  will  be 
further  observed  that  the  defendant,  in  its  second  defense,  while 
still  denying  generally,  says  that,  if  the  plaintiff  was  damaged, 
then  such  damage  was  occasioned  by  the  contributory  negligence 


658  The  Answer.  [Ch.vp.  V. 

of  the  plaintiff  or  her  agents.  "We  do  not  think  this  claim  in- 
consistent with  the  claim  that  the  injury  was  not  committed  by 
the  defendant,  or  occurred  through  his  negligence.  The  defend- 
ant in  error  cites  various  authorities  in  support  of  her  claim. 
They  are  strongly  stated  in  a  citation  from  5  Encyc.  PI.  &  Pr., 
pp.  11,  12,  as  follows:  "The  plea  of  contributory  negligence 
is  a  plea  in  confession  and  avoidance,  which  admits  negligence 
on  the  part  of  the  defendant,  but  seeks  to  avoid  liability  therefor 
by  alleging  that  plaintiff  was  guilty  of  negligence  which  con- 
tributed to  his  injury."  We  are  not  ready  to  grant  that  the 
authorities  cited  fairly  support  the  law  as  thus  laid  down, 
though  ohitcr  remarks  contained  in  some  of  them  probably  do. 
However,  immediately  following  this  quotation  is  the  statement : 
"But  this  is  not  the  rule  in  those  states  whose  codes  permit  the 
defendant  to  set  up  as  many  defenses,  whether  of  law  or  of 
fact,  as  he  may  see  fit."  Our  statute  (section  4528,  Gen.  Stat. 
1901)  permits  the  defendant  to  "set  forth  in  his  answer  as 
many  grounds  of  defense,  *  *  *  as  he  may  have,  whether 
they  be  such  as  have  been  heretofore  denominated  as  legal  or 
equitable,  or  both."  Notwithstanding  this  provision,  the 
pleader  may  not  rely  in  the  same  plea  upon  absolutely  incon- 
sistent defenses.  He  can  not  admit  and  deny  in  the  same  breath. 
He  may,  however,  adapt  his  pleadings  so  as  to  meet  the  possible 
conditions  and  contingencies  of  the  case  that  his  opponent  may 
prove.  He  may  say:  "I  was  not  negligent.  I  am  wholly  inno- 
cent in  that  matter.  It  is  possible,  however,  that  you  may  be 
able  by  your  indirection  or  my  misfortune  to  satisfy  the  jury 
that  I  am  at  fault.  If  you  do,  I  shall  assert  that  the  injury 
was  occasioned  through  your  contributory  negligence."  Or, 
he  may  say,  "If  there  was  negligence  which  was  the  cause  of 
your  injury,  I  was  not  its  author,"  and  at  the  same  time  say, 
"If  you  were  injured  by  the  negligence  of  any  one,  you  are  not 
entitled  to  relief,  for  you  contributed  thereto  by  your  negli- 
gence." It  certainly  would  be  a  very  great  hardship  to  a  de- 
fendant who  knows  that  he  was  not  negligent,  and  knows  that 
the  plaintiff  was,  to  compel  him,  at  his  peril,  to  elect  which  of 
these  defenses,  equally  good,  he  should  adopt.  These  defenses 
are  not  inconsistent.*    The  truth  of  either  by  no  means  implies 


8  And    so    in    case    of    a   general      Adair  v.  Ey.,  282  Mo.  133,   (1919), 
denial     and     assumption     of     risk,      semble. 


Sec.  3.]  Several  Defenses.  659 

the  falsity  of  the  other.  They  may  be  availed  of  for  the  purpose 
of  presenting  the  exact  facts  in  a  given  case.  Beyond  question, 
a  defendant  might  take  advantage  of  plaintiff's  contributory 
negligence,  should  such  be  developed  in  the  making  of  plaintiff's 
case,  even  though  the  defendant  had  pleaded  nothing  but  the 
general  denial.  It  would  be  a  queer  rule  that  would  deprive 
him  of  this,  had  he  added  to  such  general  denial  a  plea  of  con- 
tributory negligence.  The  plea  of  contributory  negligence, 
standing  alone,  would  be  one  in  avoidance,  but  it  cannot  be  said 
to  be  one  in  confession,  where  accompanied  by  a  general  denial. 
In  Railroad  Co.  v.  Hall,  87  Ala.  708  (6  South.  277,  4  L.  R.  A. 
710,  13  Am.  St.  Rep.  84),  on  page  724,  87  Ala.,  and  page  284,  6 
South.,  the  law  is  announced  as  follows:  "A  denial  of  the  negli- 
gence charged,  or  plea  of  not  guilty,  although  pleaded  sep- 
arately, repels  all  presumption  of  confession  which  arises  from 
the  plea  of  contributory  negligence  when  pleaded  alone."  In 
Cole  V.  Woodson,  32  Kan.  272  (4  Pac.  321),  which  was  an 
action  for  slander,  where  defendant  had  denied,  and  also 
pleaded  the  truth  of  the  slanderous  words,  this  court  said 
(page  276,  32  Kan.  and  page  322,  4  Pac.)  :  ''It  would  certainly 
be  a  great  hardship  to  a  defendant  who  had  been  sued  for  slan- 
der to  be  required  to  admit  that  he  had  used  the  alleged 
slanderous  words,  when  in  fact  he  may  never  have  used  them, 
in  order  that  he  may  be  allowed  to  show  that  such  words  are 
true.  And  it  would  equally  be  a  great  hardship  to  him  to  be 
required,  in  effect,  to  admit  that  the  words  are  false  and  slan- 
derous, when  in  fact  they  may  be  true,  in  order  to  be  allowed 
to  make  the  defense  that  he  never  used  such  words.  Our  stat- 
utes do  not  tolerate  any  such  unjust  rules,  but  allow  a  dcfend- 
anut  to  set  forth  as  many  defenses  as  he  may  have,  which  in 
slander  cases  may  be  that  he  did  not  use  the  words  charged, 
and  also  that  the  words  are  true.  And  it  makes  no  difference 
what  the  common  law  may  have  been,  or  what  may  have  been 
decided  by  courts  in  other  states,  where  their  statutes  are  differ- 
ent from  the  statutes  of  Kansas.  The  statutes  of  Kansas  must 
govern  in  actions  originating  and  instituted  within  the  borders 
of  Kansas.  And  where  they  are  clear  and  explicit,  we  need  not 
look  any  further."  In  Bell  v.  Brown,  22  Cal.  671,  on  page  678, 
the  court,  commenting  upon  the  provisions  of  a  statute  like  our 
own,  upon  a  right  it  gives  a  defendant  to  set  up  all  his  defenses, 
says:    **It  is  an  absolute  right  given  him  by  law,  and  the  prin- 


660  The  Answer.  [Chap.  V. 

ciple  is  as  old  as  the  common  law  itself.  He  may  fail  to  prove 
one  defense,  by  reason  of  the  loss  of  papers,  absence,  death,  or 
want  of  recollection  of  a  witness,  and  yet  he  ought  not  thereby 
to  be  precluded  from  proving  another  equally  sufficient  to  defeat 
the  action."  In  Treadway  v.  Railroad  Co.,  40  Iowa  526,  the 
law  is  laid  down  in  the  syllabus:  "An  admission  in  the  nature 
of  a  confession  and  avoidance  in  one  count  of  an  answer  does  not 
operate  to  admit  matter  formerly  denied  in  other  counts." 

In  Weaver  v.  Carnahan,  37  Ohio  St.  363,  a  defendant,  when 
sued,  to  recover  the  value  of  services  rendered,  may  deny  that 
the  services  were  rendered,  and  also  allege  that,  if  rendered 
their  value  was  less  than  the  amount  claimed.  For  cases  hold- 
ing analogous  views,  see  1  Enc.  PL  &  Prac.  857.    *    *    * 

Judgment  reversed. 


McALPINE  V.  FIDELITY  &  CASUALTY  CO. 
Supreme  Court  of  Minnesota,  1916.    134  Minn.  192. 

DiBELL,  C.  Action  on  a  policy  of  accident  insurance  on  the 
life  of  John  ]\IcAlpine  in  which  his  wife,  the  plaintiff,  was  the 
beneficiary.  There  was  a  verdict  for  the  defendant.  The  court 
granted  the  plaintiff's  motion  for  a  new  trial.  The  defendant 
appeals  from  the  order  granting  it.    *    *    * 

The  plaintiff  claimed  in  her  complaint  that  the  death  of 
McAlpine  resulted  from  accidental  means.  To  recover  it  was 
necessary  to  prove  it.  McAlpine  was  found  dead  in  the  base- 
ment of  his  home  between  3  and  4  o'clock  in  the  morning  of 
August  15,  1913,  with  a  fatal  bullet  wound  in  his  head.  His 
revolver  was  close  by  with  one  chamber  empty.  The  circum- 
stances were  not  conclusive.  As  between  accident  and  suicide 
the  presumption  favored  accident.  The  defendant  alleged 
suicide  and  alleged  further  that  the  death  of  the  insured  was 
caused  by  the  beneficiary.  In  either  event  the  plaintiff  could 
not  recover.  At  the  opening  of  the  case  the  plaintiff  moved 
that  the  defendant  be  required  to  elect  on  which  it  would  rely 
upon  the  ground  that  the  two  were  inconsistent.  This  motion 
was  denied  and  the  plaintiff  claims  that  it  was  error  justifying 
the  order  granting  the  new  trial.    Our  statute  is  as  follows: 


Sec.  3.]  Several  Defenses.  661 

"The  defendant  may  set  forth  by  answer  as  many  defenses 
and  counterclaims  as  he  has.  They  shall  be  separately  stated, 
and  so  framed  as  to  show  the  cause  of  action  to  which  each  is 
intended  to  be  opposed."  R.  L.  1905,  §  4132  (G.  S.  1913, 
§  7758). 

Under  our  decisions  separate  defenses  must  be  consistent. 
This  is  not  an  express  requirement  of  the  statute.  It  has  come 
about  by  construction.  It  is  not  a  universal  holding,  nor  where 
held  is  the  principle  uniformly  applied.  See  Abbot's  Civ.  Jur. 
Tr.  (3d  Ed.)  119;  Pomeroy,  Code  Remedies  (4th  Ed.)  §  598; 
Bliss,  Code  PI.  §§  342-344;  Phillips,  Code  PI.  §§  261-266;  2 
Estee  PI.  §  3381;  1  Enc.  PI.  &  Pr.  852-860;  note,  48  L.  R.  A. 
177,  16  Dec.  Dig.  PI.  §  93 ;  39  Cent.  Dig.  PL  §  189.  The  objec- 
tion upon  the  ground  of  inconsistency  is  not  favored.  Rees  v. 
Storms,  101  Minn.  381,  112  N.  W.  419.  The  purpose  of  the 
code  system  of  pleading  is  to  get  the  parties  to  a  speedj^  trial 
upon  the  merits.  It  is  not  to  prevent  the  hearing  of  a  cause 
of  action  or  the  interposition  of  a  defense.  "We  are  not  so  much 
concerned  with  the  development  of  an  artistic  and  symmetrical 
system  of  pleading  as  we  are  with  having  a  practical  procedure 
which  will  result  in  a  speedy  determination  of  disputes  upon  the 
facts.  It  is  sometimes  said  that  whether  both  defenses  can  be 
true  is  the  test  of  their  consistency.  An  examination  of  the 
cases  shows  that  whatever  the  test,  defenses  are  not  often  held 
inconsistent.  Thus  it  is  held  not  inconsistent  to  deny  a  slander 
and  allege  matter  in  mitigation.  Warner  v.  Lockerby,  31  Minn. 
421,  18  N.  W.  145,  821.  Or  to  deny  the  rendition  of  ser^dces  by 
the  plaintiff  and  allege  payment.  Steenerson  v.  Waterbury,  52 
Minn.  211,  53  N.  W.  1146.  Or  to  deny  the  execution  of  a  note 
and  allege  that  it  was  procured  by  fraud.  Bank  of  Gleneoe  v. 
Cain,  89  Minn.  473,  95  N.  W.  308.  Such  defenses  in  general 
amount  to  a  general  denial  coupled  with  a  plea  in  confession  and 
avoidance.  There  is  an  inconsistency  in  fact  between  a  general 
denial  and  a  plea  in  confession  and  avoidance ;  but  the  incon- 
sistency does  not  prevent  the  interposition  of  both.  When  the 
rule  of  consistency,  technically  applied,  prevents  the  interpo- 
sition of  a  fair  defense,  it  must  yield  to  the  insistent  demand  of 
the  law  that  a  party  be  given  a  hearing  on  all  his  causes  of 
action  and  all  his  defenses.  This  is  the  paramount  considera- 
tion. Substantive  rights  must  not  be  sacrificed  to  preserve  a 
rule  no  more  important  and  no  better  accredited  than  the  con- 


662  The  Answer.  [Chap.  V. 

sistency  rule.  Naturally  enough  the  legal  mind  revolts  at  a 
rule  of  pleading  which  requires  a  defendant  to  choose  which  of 
two  honest  defenses  he  will  interpose,  though  both  cannot  be 
true,  and  neither  is  within  his  knowledge,  at  the  peril  of  losing 
all  if  he  mistakes,  for  when  called  upon  to  elect  he  is  having 
his  final  day  in  court.  We  share  the  view  of  the  trial  court  that 
the  situation  was  not  one  requiring  an  election  which  it  ex- 
pressed as  follows: 

"It  is  true  that  the  two  defenses  cannot  both  be  true  or  cor- 
rect; but  it  is  also  true  that  the  defendants  do  not  very  well 
know  which  one  may  be  correct;  and  either  would  be  a  good 
defense  if  true.  *  *  *  It  Avould  be  an  injustice  to  limit  them 
to  one  when  they  cannot  know  which  one,  if  either,  is  true. 
They  should  have  an  opportunity  some  time  to  rely  upon  the 
other,  and  we  cannot  have  two  trials  of  the  same  matter.  There- 
fore the  motion  to  elect  should  be  denied."^    *    *    * 

Order  reversed. 

9  Accord:      Cole  v.  Woodson,  32  in   an   action   for   libel,   a  plea   of 

Kan.    272,    (1884),    general    denial  privilege   cannot  stand  with   a  de- 

and    plea    of    truth;    Woodson    v.  nial  of  publication. 
Williams,  204  S.  W.  183,  (Mo.  Sup.  For    an    extensive    collection    of 

1918),     general     denial     and     plea  the    cases,    see     comment    on    the 

in  mitigation.     Compare  Baker   v.  principal     case     in     10     California 

Clark,    186    Ky.    816,    (1920),   that  Law  Review,  251. 


CHAPTER  VI. 


THE  REPLY. 


Code  of  Civil  Procedure  op  New  York, 


§    514.^     Where    the    answer    contains    a    counterclaim,    the 


1  The  Codes  fall  into  three  groups 
on  the  subject  of  a  reply.  1st, 
Those  which  do  not  provide  for 
any  reply,  viz.,  California  and 
Idaho.  2nd,  Those  substantially 
following  the  New  York  Code,  viz. 

Arizona,  E.  S.,  1913,  §  428.  Ark- 
ansas, Dig.  Stat.,  1921,  §§  1205, 
1206.  New  York  Civ.  Prac.  Act, 
1920,   §   272,  amended: 

Where  the  answer  contains  a 
counterclaim,  the  plaintiff  may  re- 
ply to  the  counterclaim.  The  reply 
must  contain  a  general  or  specific 
denial  of  each  material  allegation 
of  the  counterclaim  controverted 
by  the  plaintiff,  or  of  any  knowl- 
edge or  information  thereof  suffi- 
cient to  form  a  belief;  and  it  may 
set  forth  new  matter  not  inconsist- 
ent with  the  complaint  constitut- 
ing a  defense  to  the  counterclaim. 
A  reply  may  contain  two  or  more 
distinct  avoidances  of  the  same 
defense  or  counterclaim. 

North  Carolina,  Consol.  Stat., 
1919,  §  523.  North  Dakota,  Comp. 
Laws,  1913,  §  7-152;  South  Carolina, 
Code,  1912,  §  203;  South  Dakota, 
Eev.  Code,  1919,  §  2357;  Wisconsin, 
Stat.,  1919,  §  2661;  United  States, 
Equity  Eules,  1912,  No.  31: 


"Unless  the  answer  assert  a  set- 
off or  counterclaim,  no  reply  shall 
be  required  without  special  order 
of  the  court  or  judge,  but  the 
cause  shall  be  deemed  at  issue  up- 
on the  filing  of  the  answer,  and 
any  new  or  affirmative  matter 
therein  shall  be  deemed  to  be  de- 
nied by  the  plaintiff.  If  the  an- 
swer include  a  set-off  or  counter- 
claim, the  party  against  whom  it 
is  asserted  shall  reply  within  ten 
days  after  the  filing  of  the  answer, 
unless  a  longer  time  be  allowed 
by  the  court  or  judge.  If  the 
counterclaim  is  one  which  affects 
the  rights  of  other  defendants  they 
or  their  solicitors  shall  be  served 
with  a  copy  of  the  same  within 
ten  days  from  the  filing  thereof, 
and  ten  days  shall  be  accorded  to 
such  defendants  for  filing  a  reply. 
In  default  of  a  reply,  a  decree  pro 
confesso  on  the  counterclaim  may 
be  entered  as  in  default  of  an  an- 
swer to  the  bill." 

3rd,  Those  requiring  a  reply 
where  the  answer  contains  new 
matter  constituting  a  defence  or 
counterclaim,  and  in  the  main  sub- 
stantially following  the  wording 
of  the  Missouri  Code,  E.  S.  1919, 
§   1235: 


663 


664 


The  Reply. 


[Chap.  VI. 


plaintiff,  if  he  does  not  demur,  may  reply  to  the  counterclaim.^ 
The  reply  must  contain  a  general  or  specific  denial  of  each 
material  allegation  of  the  counter-claim,  controverted  by  the 
plaintiff,  or  of  any  knowledge  or  information  thereof  sufficient 
to  form  a  belief;  and  it  may  set  forth  in  ordinary  and  concise 
language,  without  repetition,  new  matter  not  inconsistent  with 
the  complaint,  constituting  a  defense  to  the  counter-claim. 

§  515.  If  the  plaintiff  fails  to  reply  or  demur  to  the  counter- 
claim, the  defendant  may  apply,  upon  notice,  for  judgment 
thereupon;  and,  if  the  case  requires  it,  a  reference  may  be 
ordered,  or  a  writ  of  inquiry  may  be  issued,  as  prescribed  in 
chapter  eleventh  of  this  act,  where  the  plaintiff  applies  for 
judgment. 

§  516.  Wliere  an  answer  contains  new  matter,  constituting 
a  defense  by  way  of  avoidance,  the  court  may,  in  its  discretion,^ 
on  the  defendant's  application,  direct  the  plaintiff  to  reply  to 
the  new  matter.     In  that  case,  the  reply,  and  the  proceedings 


The  plaintiff  may  demur  to  one 
or  more  defenses  set  up  in  the 
answer,  stating  in  his  demurrer 
the  grounds  thereof;  and  where  the 
answer  contains  new  matter,  the 
plaintiff  shall  reply  to  such  new 
matter  within  such  time  as  the 
court  by  rule  or  otherwise  shall 
require,  denying  generally  or  speci- 
fically the  allegations  controverted 
by  him,  or  any  knowledge  or  infor- 
mation thereof,  sufficient  to  form 
a  belief,  and  he  may  allege  in  or- 
dinary and  concise  language  and 
without  repetition  any  new  matter 
not  inconsistent  with  the  petition, 
constituting  a  defense  to  the  new 
matter  in  the  answer.  To  this 
reply  the  defendant  may  demur 
within  three  days  after  the  same 
has  been  filed. 

Alaska,  Code,  1900,  §  67;  Con- 
necticut, E.  S.,  1918,  §  5633;  In- 
diana, Burn's  Ann.  Stat.,  1914,  § 
363;  Iowa,  Comp.  Code,  1919,  §§ 
7219,  7220;  Kansas,  G.  S.,  1915,  § 
6996;  Kentucky,  Eev.  Code,  1900, 
§    98;    Minnesota,    G.    S.,    1913,    § 


7760;  Missouri,  E.  S.,  1919,  §  1235 
Montana,  Eev.  Code,  1907,  §  6560 
Nebraska,  Ann.  Stat.,  1911,  §  1111 
Nevada,  Eev.  Laws,  1912,  §  5057 
New   Mexico,   Ann.    Stat.,    1915,    § 
4119;     Ohio,    Gen.    Code,     1921,    § 
11326;  Oklahoma,  Eev.  Laws,  1910, 
§  4753;   Oregon,  Laws,   1920,  §   77; 
Utah,    Comp.   Laws,    1917,    §    6590; 
Washington,    Eem.    &    Bal.    Code, 
1910,  §  276;  Wyoming,  Comp.  Stat., 
1920,   §  5669. 

2  Since  a  counterclaim  is  a  cause 
of  action  in  favor  of  the  defend- 
ant against  the  plaintiff,  ante  p. 
470,  the  reply  under  sec.  514  is  not 
a  true  reply  at  all,  but  rather  an 
answer,  governed  by  the  same  rules 
as  an  answer  to  a  complaint. 

3  For  a  discussion  of  the  consid- 
erations which  will  induce  a  court 
to  make  an  order  on  the  plaintiff 
to  file  a  reply  under  this  section, 
see  Hubbell  v.  Fowler,  1  Abbott, 
Prac.  N.  S.  1;  Hungarian  Credit 
Bank  v.  Titus,  175  App.  Div.  504, 
(1916). 


Sec.  1.]  When  Necessary,  •  665 

upon  failure  to  reply,  are  subject  to  the  same  rules  as  in  the 
case  of  a  counter-claim. 

§  517.  A  reply  may  contain  two  or  more  distinct  avoidances 
of  the  same  defense  or  counter-claim;  but  they  must  be  sep- 
arately stated  and  numbered.* 

§  493.  The  defendant  may  also  demur  to  the  reply,  or  to  a 
separate  traverse  to,  or  avoidance  of,  a  defense  or  counter-claim, 
contained  in  the  reply,  on  the  ground  that  it  is  insufficient  in 
law,  upon  the  face  thereof. 


Section  1.    When  Necessary. 

STERN  v.  FREEMAN. 

Court  of  Appeals  of  Kentucky,  1863.    4  Mete.  309. 

Judge  Bullitt  delivered  the  opinion  of  the  court : 
Freeman  brought  this  action,  and  attached  property  belong- 
ing to  Stern,  a  non-resident,  to  satisfy  a  note  executed  by  him  to 
the  plaintiff.  Stern  answered,  that,  "at  the  time  of  the  execu- 
tion of  said  note,  this  defendant  was  an  infant  under  the  age  of 
21  years;"  and  this  is  the  only  defense  that  we  need  to  notice. 
Defendant's  answer  and  the  evidence  show  that  the  plaintiff 
and  defendant  were  merchant  partners  until  October  22,  1859, 
when  the  plaintiff  sold  his  interest  in  the  concern  to  the  de- 
fendant, then  under  21  years  of  age,  in  consideration  of  the 
note  sued  on,  and  other  notes  then  executed.  Defendant  at- 
tained the  age  of  21  years  in  December,  1859,  It  is  proved  by 
parol  evidence,  that,  up  to  the  time  this  action  was  brought, 
in  June,  1860,  defendant,  in  his  own  behalf,  carried  on  the 
business,  selling  the  goods  and  collecting  the  debts,  that  for- 
merly belonged  to  him  and  the  plaintiff;  and  it  is  proved,  that, 
in  March,  1860,  about  three  months  after  he  attained  the  age 
of  21  years,  he  wrote  a  letter  to  Liebor,  who  owed  money  for 
goods  purchased   from   Freeman   and   Stern,   stating   that   he 

4  Under   the   New  York   Code   a  negatively  or  affirmatively,  without 

reply  is  the  last  pleading,  and  any  a  rejoinder,  Biggs  v.  Steiuway,  191 

matters  therein  set  up  may  be  met  App.  Div.  526,   (1920). 
by  the  defendant 's   evidence,  either 


666  The  Reply.  [Chap.  VI. 

"had  been  collecting  the  debts  due  the  firm  of  Freeman  & 
Stern,  and  that  he  was  going  on  in  the  same  business  in  his  own 
name."  The  chancellor  rendered  judgment  for  the  plaintiff, 
to  reverse  which  the  defendant  appeals.    *    *    * 

The  note,  having  been  executed  when  the  defendant  was  under 
21  years  of  age,  was  voidable;  and  the  simple  statement  of  the 
fact  in  his  answer  is  sufficient.  He  was  not  bound  to  aver  that 
the  note  was  voidable,  nor  otherwise  to  state  the  law  of  the  case. 

But  the  plaintiff  contends  that  the  note  was  made  unavoidable 
by  the  ratification  of  the  defendant.  And  here  the  question 
arises,  whether  or  not  the  plaintiff  was  bound  to  aver  the  ratifica- 
tion in  his  petition,  or  by  an  amended  petition. 

The  Code  of  Practice  declares,  that,  "there  shall  be  no  reply 
except  upon  the  allegation  of  a  counter-claim^  or  set-off  in  the 
answer;"  (Sec.  132),  and  that,  "the  allegation  of  new  matter 
in  the  answer,  not  relating  to  a  counter-claim  or  set-off,  •  *  * 
is  to  be  deemed  controverted  by  the  adverse  party,  as  upon  a 
direct  denial  or  avoidance,  as  the  case  may  require." 
(Sec.  153.)^  The  question  is,  whether  or  not,  under  the  old 
practice,  the  plaintiff  could  reply  a  ratification  of  the  contract, 
in  avoidance  of  the  plea  of  infancy.  If  he  could,  he  may,  under 
the  Code,  prove  the  ratification  without  a  reply,  and  without 
setting  it  forth  in  an  amended  petition. 

Upon  this  question  there  seems  to  have  been  some  conflict  of 
opinion,  as  is  shown  by  the  cases  referred  to  in  Moor  v.  Williams, 
11  Mees.  &  Welsby.  Mr.  Chitty,  however,  without  referring  to 
any  conflict  of  opinion  upon  the  subject,  says,  that  to  a  plea  of 
infancy  in  assumpsit,  the  plaintiff  "may  reply  to  the  whole, 
or  part,  that  the  defendant  ratified  and  confirmed  the  promise 
after  he  came  of  age."  (1  Chitty  PL  612.)  And  again,  in 
speaking  of  replications  which  confess  and  avoid  the  plea,  he 
says,  that,  "if  infancy  be  pleaded,  the  plaintiff  may  reply  that 
the  goods  were  necessaries,  or  that  the  defendant,  after  he  came 
of  age,  ratified  and  confirmed  the  promise."  (Id.  657.)  The 
doctrine  stated  by  Mr.  Chitty  seems  to  be  founded  upon  prin- 
ciple.    The   manner   of   pleading   depends   upon   the   question 

6  See  Vassear  v.  Livingston,  ante  affirmative  defences,  they  are  not 

p.  621,  and  Bates  v.  Rosekrans,  ante  admitted  by  a  failure  to  reply, 

p.   628,  to  the   effect  that  under  a  6  For    the    present    statute,    see 

similar  provision  of  the  New  York  Code    1900,    §    98. 
Code,    where    the    answer    sets    up 


Sec.  1.]  When  Necessary.  667 

whether  the  right  of  recovery,  in  such  cases,  is  based  upon  the 
original  contract,  or  upon  the  ratification.  If  upon  the  latter, 
it  would  have  been  necessary,  under  the  old  practice,  in  all  ac- 
tions, excepting,  perhaps,  general  assumpsit,  to  declare  upon  the 
ratification,  or  to  set  it  forth  by  a  new  assignment,  in  the  form 
of  a  replication  to  the  plea  of  infancy,  which  would  have  been, 
in  effect,  declaring  anew  upon  the  ratification.  But  if  the  right 
of  recovery  is  based  upon  the  original  contract,  the  ratification, 
under  the  old  practice,  would  have  formed  matter  for  a  replica- 
tion in  confession  and  avoidance  of  the  plea. 

That  the  right  of  recovery,  in  many  if  not  all  such  cases,  is 
based  upon  the  original  contract,  and  not  upon  the  ratification, 
seems  to  be  conclusively  proved  by  the  fact,  that,  by  the  common 
law,  the  plaintiff  may  recover  upon  a  contract  made  by  the 
defendant  during  infancy,  which  he  has  ratified  by  merely  fail- 
ing to  disaffirm  it  within  a  reasonable  time  after  coming  of  age, 
(Kline  v.  Beebe,  6  Conn.  494;  2  Kent's  Com.  238),  since  it  is 
clear  that  a  person  cannot  be  held  liable  for  failing  to  disaffirm 
a  contract  which  he  is  not  bound  to  disaffirm ;  and,  also,  by  the 
fact  that,  by  the  common  law,  a  sale  of  land  by  an  infant  may 
be  ratified  verbally,  notwithstanding  a  statute  prohibiting  the 
sale  of  land  except  by  writing.  (Houser  v.  Reynolds,  1  Hayea 
143;  Wheaton  v.  East,  5  Yerger's  Tenn.  R.  41.)  It  seems  clear, 
that  in  both  those  classes  of  cases  the  right  of  recovery  is  based, 
and  can  be  based  only,  upon  the  original  contract,  the  ratifica- 
tion having  no  effect  whatever,  except  to  prevent  the  defendant 
from  avoiding  his  contract. 

Probably  where  a  person,  after  coming  of  age,  has  promised 
to  pay  a  debt  contracted  during  infancy,  or  has  done  an  act 
from  which  the  law  implies  such  a  promise,  the  plaintiff  might 
declare  upon  the  new  promise,  relying  upon  the  original  con- 
sideration to  support  it.  But  he  is  not  obliged  to  do  so.  He 
may  declare  upon  the  original  contract,  and  show  the  new  prom- 
ise, like  any  other  ratification,  in  avoidance  of  the  plea  of  in- 
fancy. This  results  necessarily  from  the  fact  that  the  contract 
is  voidable  only,  and  not  void.  It  is  valid  until  disaffirmed.  No 
ratification  is  needed  to  make  it  binding.  Disaffirmance  is 
needed  to  invalidate  it.  The  plaintiff  may,  therefore,  sue  upon 
it,  and  if  the  defendant  pleads  infancy,  the  plaintiff  may  avoid 
the  plea  by  showing  a  promise,  or  other  act  of  ratification,  by 
which  the  defendant  has  deprived  himself  of  the  right  to  avoid 


668  The  Reply.  [Chap.  VI. 

the  contract.  In  such  a  case,  the  only  effect  of  the  ratification  is 
to  prevent  the  defendant  from  disaffirming  the  contract  sued 
upon,  which,  being  valid  until  disaffirmed,  clearly  forms  the 
basis  of  recovery,  the  ratification  forming  matter  of  confession 
and  avoidance  to  the  plea  of  infancy. 

It  may  be  proper  to  add,  that,  under  the  Code  of  Practice, 
this  question  probably  stands  upon  a  different  footing  from 
that  relating  to  an  acknowledgment  or  promise,  relied  upon  to 
save  a  claim  barred  by  limitation. 

It  follows,  from  what  we  have  said,  that  the  plaintiff  in  this 
case  had  a  right  to  prove  a  ratification  of  the  contract,  without 
averring  it  in  his  pleadings.    *    *    * 

Judgment  affirmed. 


STATE  V.  WILLIAMS. 
Supreme  Court  of  Missouri,  1871.    48  Mo.  210. 

Currier,  Judge.  This  suit  is  founded  upon  an  attachment 
bond.  The  petition  sets  out  its  condition,  which  was  in  the  usual 
form,  and  alleges  as  a  breach  of  it  that  the  plaintiff  in  the  at- 
tachment failed  to  prosecute  the  same  without  delay  and  with 
effect,  in  breach  of  the  condition  of  said  bond.  It  was,  more- 
over, averred  that  the  attachment  was  abated  by  the  judgment 
of  the  court,  upon  the  trial  of  the  issues  raised  by  an  appro- 
priate plea  in  abatement. 

The  answer  admits  the  execution  of  the  bond,  but  denies  the 
alleged  breach  of  it;  admits  also  the  judgment  of  the  court  abat- 
ing the  attachment,  but  alleges  that  such  judgment  was  not 
final;  that  in  due  time  motions  for  arrest  and  for  a  new  trial 
were  filed,  and  that  such  motions  were  still  pending  and  un- 
disposed of  in  the  court  where  the  judgment  abating  the  attach- 
ment was  rendered. 

The  plaintiff  made  no  reply,  and  the  parties  went  to  trial 
upon  the  issues  raised  by  the  petition  and  answer;  and  upon 
the  trial  the  court  ruled  upon  the  evidence,  and  gave  and  re- 
fused instructions  upon  the  theory  that  the  affirmative  allega- 
tions of  the  answer  introduced  new  matter  constituting  a  de- 
fense to  the  action,  and  that  the  facts  so  averred,  in  the  absence 


Sec.  1.]  "When  Necessary.  669 

of  a  replication  contesting  them,  stood  admitted  by  the  plead- 
ings. 

The  question  presented  for  consideration,  therefore,  is  whether 
the  affirmative  allegations  of  the  answer — to  wit,  that  the  attach- 
ment suit  was  still  pending  and  undisposed  of — presented  new 
matter  constituting  a  defense  to  the  plaintiff's  action,  which 
required  a  replication  in  order  to  put  such  new  matter  in  issue. 
The  general  rule  on  this  subject  is  that  any  fact  which  avoids 
the  action,  and  which  the  plaintiff  was  not  bound  to  prove  in 
the  first  instance  in  support  of  it,  is  new  matter.  (Stoddard  v. 
Methodist  Church,  12  Barb.  573.)  But  a  fact  which  merely 
negatives  the  averments  of  the  petition  is  not  new  matter,  and 
need  not  be  replied  to.  Moreover,  an  answer  setting  up  new 
matter,  by  way  of  defense,  should  confess  and  avoid  the  plain- 
tiff's cause  of  action.  (Bauer  v.  "Wagner,  39  Mo.  385;  and  see 
Northrup  v.  Miss.  Val.  Ins.  Co.,  47  Mo.  435.) 

An  application  of  these  views  to  the  answer  in  this  cause  will 
show  that  it  fails  to  set  out  new  matter  constituting  a  defense. 
That  which  is  claimed  to  be  new  matter  merely  contradicts  the 
averments  of  the  petition  in  an  indirect  way.  The  petition 
avers  that  the  plaintiff  in  the  attachment  suit  had  failed  to  pros- 
ecute that  suit  without  delay  and  with  effect — that  is,  to  final 
judgment  in  his  favor.  In  order  to  sustain  the  suit,  therefore, 
it  was  necessary  for  the  plaintiff  to  show  that  the  attachment 
suit  had  been  finally  disposed  of  adversely  to  the  plaintiff  in  that 
suit.  The  defendant,  in  effect,  avers  that  the  suit  is  not  finally 
disposed  of,  but  that  the  same  is  still  pending,  awaiting  the 
judgment  of  the  court  upon  a  motion  for  a  new  trial.  That  is 
no  confession  and  avoidance  of  the  plaintiff's  cause  of  action. 
It  is  an  allegation  to  the  effect  that  no  cause  of  action  ever  ac- 
crued upon  the  bond  sued  upon.  It  is,  for  instance,  a  denial 
of  the  allegation  of  the  petition  that  the  plaintiff  in  the  attach- 
ment suit  had  failed  to  prosecute  that  suit  with  effect  and  with- 
out delay.  There  was,  therefore,  nothing  in  the  answer  requir- 
ing a  reply."' 

1  See    Craig    v.    Cook,    28    Minn.  denying   the   trespass  to   land   and 

232,   (1885),  where  to  a  complaint  justifying  the  assault  and  battery, 

in   one  count  charging  a  breaking  and    the    court    thought    that    the 

and   entering   of   a   house   and   as-  justification  of  the  assault  was  not 

saulting  and  beating  plaintiff,  de-  admitted   by    failure   to   reply,  be- 

fendant  answered  argumentatively  cause  it  was  not  a  defense  to  the 


670  The  Reply.  [Chap.  VI. 

The  other  judges  concurring,  the  judgment  will  be  reversed 
and  the  cause  remanded. 


BENICIA  AGRICULTURAL  WORKS  v.  CREIGHTON. 
Supreme  Court  of  Oregon,  1892.    21  Ore.  495. 

The  complaint  sought  to  recover  a  balance  of  $919.91  for 
goods  sold  and  delivered.  The  answer  consisted  of  certain  de- 
nials, a  plea  of  payment,  a  plea  of  account  stated  and  payment 
of  the  balance  found  due,  and  a  small  counterclaim.  The  reply 
denied  the  plea  of  payment  and  the  counterclaim.    *    *    * 

*  *  *  A  trial  before  a  jury  resulted  in  a  verdict  for  the 
plaintiff  for  the  sum  of  eighty-three  dollars  and  eighty-six  cents. 
Thereafter  the  plaintiff  moved  for  judgment  on  the  verdict,  and 
the  defendants  moved  for  judgment  for  their  costs  and  disburse- 
ments notwithstanding  the  verdict.  The  plaintiff  also  moved 
that  the  verdict  be  set  aside  and  for  a  new  trial.  The  court 
thereupon  ordered  that  the  motion  for  judgment,  notwithstand- 
ing the  verdict,  be  overruled.  *  *  *  On  the  twenty-second 
day  of  November,  1890,  plaintiff's  motion  for  judgment  on  the 
verdict  came  on  to  be  heard,  and  was  allowed,  and  judgment 
entered  in  favor  of  the  plaintiff  for  the  amount  found  by  the 
jury. 

From  this  judgment  the  appeal  is  taken.* 

Strahan,  C.  J.  The  notice  of  appeal  contains  numerous  as- 
signments of  error  upon  which  the  appellants  intended  to  rely 
upon  this  appeal,  but  the  condition  of  this  record  renders  a  par- 
ticular examination  of  them  unnecessary. 

The  plea  of  a  full  settlement  and  payment  of  the  amount 
found  due  the  plaintiff  upon  such  settlement  is  not  denied  by 
the  reply,  and  must  therefore,  for  the  purpose  of  this  action,  .be 
taken  as  true.  (Adams  v.  Tuley,  Ind.  27  N.  E.  .Rep.  991 ;  Bab- 
action.  At  common  law  the  assault  fence  at  all,  obviously  there  is  no 
and  battery  would  have  been  con-  occasion  to  reply,  West  v.  Cameron, 
sidered  mere  matter  of  aggrava-  39  Kan.  736. 
tion.  8  Statement  condensed  and  part 

Where  the  matter  set  up  in  the      of  opinion  omitted, 
q,nswer  does  not  amount  to  a  de- 


Sec.  1.]  "When  Necessary.  671 

cock  V.  Farmers'  and  Drovers'  Bank,  46  Kan.  548.)  Section  72, 
Hill's  Code,  defines  what  the  answer  of  the  defendant  shall 
contain.  Subdivision  1  of  the  section  requires  a  specific  denial 
of  each  material  allegation  of  the  complaint  controverted  by 
the  defendant,  or  of  any  knowledge  or  information  thereof  suf- 
ficient to  form  a  belief.  The  second  subdivision  of  the  section 
requires  the  answer  to  contain  a  statement  of  any  new  matter 
constituting  a  defense  or  counter-claim,  in  ordinary  and  con- 
cise language  without  repetition.  Section  73  authorizes  the  de- 
fendant to  set  forth  by  answer  as  many  defenses  and  counter- 
claims as  he  may  have.  Section  76  provides  that  when  the 
answer  contains  new  matter  constituting  a  defense  or  counter- 
claim, the  plaintiff  may  reply  to  such  new  matter,  denying 
specifically  each  allegation  controverted  by  him,  or  any  knowl- 
edge or  information  thereof  sufficient  to  form  a  belief;  and  he 
may  allege  in  ordinary  and  concise  language,  without  repetition, 
any  new  matter  not  inconsistent  with  the  complaint,  constitut- 
ing a  defense  to  such  new  matter  in  the  answer.  Section  78 
provides,  if  the  answer  contain  a  statement  of  new  matter,  con- 
stituting a  defense  or  counter-claim,  and  the  plaintiff  fail  to 
reply  or  demur  thereto,  within  the  time  prescribed  by  law  the 
defendant  may  move  the  court  for  such  judgment  as  he  is  en- 
titled to  on  the  pleadings,  and  if  the  case  require  it,  he  may  have 
a  jury  called  to  assess  the  damages;     *    *    *. 

It  is  alleged  in  the  answer,  and  not  denied  by  the  reply,  that 
on  the  twenty-sixth  day  of  September,  1889,  the  parties  came  to 
a  full  settlement  and  accounting  of  all  matters  relating  to  the 
sale  of  said  goods,  wares,  and  merchandise  by  the  plaintiff  to 
the  defendants;  and  that  upon  said  settlement  there  was  found 
due  and  owing  from  the  defendants  to  the  plaintiff  the  sum  of 
fifty-five  dollars.  This  settlement  merged  the  plaintiff's  cause 
of  action  into  the  new  contract  thereby  made,  which  was  the 
sole  measure  and  extent  of  the  defendant's  liability  to  the  plain- 
tiff on  account  of  the  goods,  wares,  and  merchandise  mentioned 
in  the  complaint;  and  when  the  amount  found  due  upon  such 
settlement  was  paid,  all  liability  of  the  defendants  to  the  plain- 
tiff on  account  of  said  matters  was  fully  discharged  and  ended. 
At  any  time  after  the  reply  was  filed,  and  these  material  matters 
left  undenied,  the  defendants  were  entitled,  on  motion,  to  a 
judgment  in  their  favor  for  their  costs  and  disbursements.  It 
is  not  perceived  that  their  right  thereto  was  in  any  manner  af- 


672.  The  Reply.  [Chap.  VI. 

fected  by  a  failure®  to  make  the  motion  until  after  the  verdict. 

This  result  requires  a  reversal  of  the  judgment  with  direc- 
tions to  overrule  the  plaintiff's  motion  for  judgment  on  the  ver- 
dict and  to  sustain  the  defendant's  motion  for  judgment  not- 
withstanding the  verdict. 


Section  2.    New  Assignment. 

CAMPBELL  v.  BANNISTER. 

Court  of  Appeals  of  Kentucky,  1880.    79  Ky.  205.^ 

Chief  Justice  Cofer  delivered  the  opinion  of  the  court. 

This  was  an  action  for  slander  in  charging  the  plaintiff  with 
the  crime  of  arson.  The  defendant,  by  his  answer,  admitted  that 
he  spoke  the  words  charged,  but  averred  they  were  spoken  to  his 
wife  in  the  privacy  of  his  family,  and  were  accidentally  over- 
heard by  another  person  in  the  house,  but  not  known  to  be  with- 
in hearing,  and  thus,  without  having  been  so  intended  by  him, 
became  public.  And  he  further  averred  that  this  was  done 
without  malice,  and  was  the  wrong  and  injury  complained  of 
in  the  petition. 

In  his  reply,  the  plaintiff  averred  that  it  was  not  true  that 
the  defendant  spoke  the  words  complained  of  under  the  cir- 
cumstances stated  in  the  answer;  and  he  also  averred  that  the 
defendant  had  often  spoken  the  words,  or  the  substance  of  them, 
in  the  presence  of  divers  persons. 

With  the  pleadings  in  this  condition,  the  parties  went  to  trial, 
which  resulted  in  a  verdict  for  the  plaintiff  for  one  cent  in  dam- 
ages, and  his  motion  for  a  new  trial  having  been  overruled,  he 
has  appealed. 

One  whose  house  has  been  set  on  fire  may  communicate  to  his 
family,  under  proper  precautions,  and  without  malice,  his  sus- 
picions as  to  who  the  incendiary  is,  and  he  will  not  be  responsi- 
ble to  a  person  falsely  accused  for  so  doing. 

9  Where  the  case  has  been  tried  to  reply,  McAllister  v.  Howell,  42 
as  if  the  defence  had  been  put  in  Ind.   15;   see   also   Rhine   v.  Mont- 
issue,   it  is   too   late   after   verdict  gomery,  ante  p.  652. 
to   take  advantage  of  the   failure 


Sec.  2.]  New  Assignment.  673 

If  he  be  sued,  the  fact  that  he  repeated  the  accusation  to 
others  may  be  given  in  evidence,  for  the  purpose  of  proving  that 
the  communication  to  his  family  was  malicious,  and  that  was  the 
only  purpose  for  which  evidence  of  other  publications  of  the 
defamatory  words  was  admissible  in  this  case. 

The  plaintiff,  having  traversed  the  allegations  of  the  answer, 
had  no  right  to  recover  for  any  other  publication  that  that  ad- 
mitted in  the  answer. 

If  that  was  not  the  publication  for  which  he  sued,  he  should 
have  filed  an  amended  petition,  setting  forth  his  cause  of  action 
more  minutely  and  circumstantially,  and  could  not,  by  anything 
contained  in  his  reply,  draw  the  defendant  away  from  the  par- 
ticular publication  admitted  in  the  answer.  This  could  only  be 
done  by  a  new  assignment.^ 

A  new  assignment  is  not,  properly  speaking,  a  replication, 
since  it  does  not  profess  to  reply  to  anything  contained  in  the 
defendant's  answer,  but  throws  aside  as  useless  a  previous  plead- 
ing, or,  rather,  re-states,  in  a  more  minute  and  circumstantial 
manner,  the  cause  of  action  alleged  in  the  petition  which  the  de- 
fendant, through  mistake  or  design,  has  omitted  to  answer.  It 
is,  therefore,  in  the  nature  of  a  new  petition,  or,  rather,  it  is  a 
more  precise  and  particular  repetition  of  the  matter  contained 
in  the  original  petition,  so  as  to  indicate  that  the  plaintiff  is 
suing  for  a  matter  other  than  that  to  which  the  answer  relates. 
(Chitty  on  PI.,  p.  653.)     *    *    • 

Judgment  reversed.^ 

1  Turner,  J.,  in  Puget  Sound  Iron  perfectly  consistent  with  the  com- 

Co.  V.  Worthington,   2  Wash.  Ter.  plaint.      It    is    not    a    new    assigu- 

472,  (1865):      *     *     »  ment,    because    there    is    no    such 

"The    first    matter    assigned    by  thing  as  a  new  assignment,  as  that 

the    appellant    as    error    which    we  term    was    understood    at    common 

shall  notice  is  the   failure   of  the  law,  under  our  system  of  pleading, 

court    to   sustain   the    demurrer   to  If,   under   our   system,   it    becomes 

the   reply.     The   appellant   attacks  necessary    for   a   party    to    restate 

the  reply  as  a  departure  in  plead-  his  cause  of  action,  he  may  do  so 

ing.     The  appellees  attempt  to  sus-  by    amendment.      The    reply    must 

tain  it  as  a  new  assignment  of  the  traverse,     or     confess     and     avoid, 

contract  described  in  the  complaint.  Code,   §   86." 

In  our  judgment  it  is  neither.     It  2  The  judgment  was  reversed  for 

is   not   a   departure,   because   it   is  error  in  the  admission  of  evidence. 


674  The  Reply.  [Chap.  VI. 

Section  3.    Depaeture. 

VAN  DORN  V.  BODLEY. 

Supreme  Court  of  Indiana,  1871.    38  Ind.  402. 

Downey,  J.  The  appellee  sued  the  appellant  on  three  promis- 
sory notes  executed  by  the  appellant  to  the  appellee,  in  Cal- 
ifornia, on  the  22d  day  of  January,  1855,  two  of  which  were 
payable  generally  and  payable  in  the  town  of  Covington,  Foun- 
tain County,  Indiana. 

The  defendant  pleaded  the  statute  of  limitations  of  California, 
which  bars  actions  upon  promissory  notes  in  four  years,  alleg- 
ing that  he  was  when  the  notes  were  executed,  and  ever  since 
had  been,  a  resident  of  that  state. 

The  plaintiff  replied,  first,  the  general  denial;  second  and 
third,  a  new  promise  made  by  the  defendant,  in  writing,  within 
four  years  prior  to  the  time  of  the  commencement  of  the  ac- 
tion;   *    *    *. 

Demurrers  to  the  second,  third,  and  fifth  paragraphs  of  the 
reply  were  overruled,  and  exceptions  taken. 

At  the  instance  of  the  defendant,  the  court  made  a  specia) 
finding  and  stated  its  conclusions  of  law.  The  defendant  ex- 
cepted to  the  finding  as  to  the  facts,  as  well  as  to  the  conclusions 
of  law;  and  also  moved  for  a  vejiire  de  novo,  which  was  over- 
ruled, and  final  judgment  rendered  for  the  plaintiff.  There  is 
no  evidence  nor  any  bill  of  exceptions  in  the  record. 

The  only  questions  involved  in  the  case  are  those  upon  the  de- 
murrers, and  the  conclusions  of  law  upon  the  special  find- 
ing.   *    *    • 

To  reply  a  new  promise^  to  pay  a  debt  otherwise  barred  by 
the  statute  of  limitations,  is  no  departure. 

It  is  conceded  that  it  was  not  at  common  law ;  but  it  is  claimed 
by  counsel  for  appellant,  that  under  the  code  it  is  different. 
We  are  referred  to  section  67  of  the  code,  which  authorizes  the 
plaintiff,  in  his  reply,  to  state  "any  new  matter  not  inconsistent 
with  the  complaint."     That  was  precisely  the  rule  before  the 

1  Where    a    reply    is    necessary,  under    a    reply   by   way   of   denial 

matters    avoiding    the    statute    of  only,  Moore  v.  Granby,  80  Mo.  86, 

limitations     must     be     specially  (1883). 
pleaded,    and    cannot    be    proved 


Sec.  3.]  Departure.  675 

code.     The  replication  must  be  consistent  with  the  declaration. 

As  early  as  the  case  of  Zehnor  v.  Beard,  8  Tnd.  96,  it  was  said 
by  the  court,  that  "the  inconsistency  of  the  reply  and  the  com- 
plaint is  the  same  defect  known  in  the  old  system  as  a  departure 
in  pleading."  The  practice  is  to  declare  upon  the  original 
promise,  and  when  the  statute  is  pleaded,  to  reply  the  new  prom- 
ise. The  new  promise  is  a  waiver  of  the  right  to  rely  upon  the 
statute,  or  its  effect  is  to  revive  the  former  cause  of  action  and 
give  it  vitality.  Angell  Limitations,  see.  288.  That  the  new 
promise  is  now  required  to  be  in  writing,  does  not  change  this 
rule.    •    •    • 

Judgment  affirmed. 


SCHOOL  DISTRICT  v.  CALDWELL. 

Supreme  Court  of  Nebraska,  1884.    16  Neh.  68. 

Reese,  J.  This  action  was  brought  by  the  plaintiff  in  the 
district  court  of  Adams  county,  to  restrain  the  defendants  from 
selling  the  real  estate  described  in  the  plaintiff's  petition.  The 
facts  are  as  follows:  On  the  eighteenth  day  of  October,  1877, 
the  defendants  recovered  a  judgment  against  W.  W.  Fitzpat- 
rick,  J.  M.  Fitzpatrick,  and  J.  S.  Mclntyre,  in  the  district  court 
of  Lancaster  county,  for  the  sum  of  $1,053.33,  and  on  the  tenth 
day  of  December  of  the  same  year,  a  transcript  of  said  judg- 
ment was  filed  in  the  office  of  the  clerk  of  the  district  court  of 
Adams  county.  On  the  thirteenth  day  of  January,  1878,  J.  S. 
Mclntyre,  one  of  the  judgment  defendants,  sold  and  conveyed 
the  real  estate  in  dispute  to  A.  F.  Boston,  who,  on  the  fourteenth 
day  of  November,  1879,  conveyed  it  to  R.  A.  Batty,  and  he  after- 
wards conveyed  it  to  the  plaintiff.  On  the  fourteenth  day  of 
August,  1882,  an  execution  was  issued  on  said  transcript  and 
levied  on  said  real  estate  as  the  property  of  said  J.  S.  IMcIntyre, 
the  sale  of  which  the  plaintiff  enjoined.  Upon  trial  in  the  dis- 
trict court  the  injunction  was  dissolved  and  the  case  dismissed. 
The  plaintiff  appeals  to  this  court. 

The  petition  alleges  that  said  judgment  is  not  a  lien  on  said 
real  estate,  for  the  reason  that  the  instrument  purporting  to  be 
a  transcript  of  the  judgment  rendered  by  the  district  court  of 


676  The  Reply.  [Chap.  VI. 

Lancaster  county  does  not  show  that  the  court  had  any  jurisdic- 
tion over  the  said  J.  S.  Mclntyre,  and  that  the  pretended  judg- 
ment was  not  docketed  on  the  court  records  of  Adams  county, 
nor  entered  in  the  general  index  of  judgments  of  said  court,  was 
not  a  lien  on  the  real  estate  of  the  said  J.  S.  Mclntyre,  and  that 
the  plaintiff  purchased  said  property  without  any  knowledge  of 
the  existence  of  said  judgment.  To  this  petition  the  defendants 
answered,  setting  up  their  judgment,  alleging  it  was  still  in 
force,  the  filing  of  the  transcript,  that  it  was  properly  indexed, 
and  that  at  the  time  of  the  filing  of  said  transcript  the  said 
Mclntyre  was  the  owner  of  the  property,  and  that  their  judg- 
ment was  a  lien  thereon.  The  plaintiff  replied,  alleging  that 
said  judgment  was  fully  paid  and  satisfied  prior  to  the  issuance 
of  the  execution,  and  that  said  payment  and  satisfaction  was 
made  by  the  payment  of  $290.20  on  the  fourth  day  of  September, 
1878,  and  by  three  promissory  notes  executed  by  said  Mclntyre, 
with  J.  B.  Mclntyre  as  surety,  each  of  said  notes  being  for  the 
sum  of  $287.33,  and  that  said  notes  were  given  and  received  in 
full  satisfaction  of  said  judgment,  and  had  been  since  paid,  in 
part,  the  unpaid  notes  being  still  held  by  the  defendants.  On 
the  trial  of  the  cause  the  plaintiff  sought  to  prove  this  allegation 
of  the  reply,  to  which  objection  was  made  and  the  testimony 
rejected.  Without  stopping  to  inquire  whether  this  question  is 
or  is  not  properly  before  the  court,  we  will  say  that,  if  the  fact 
exists,  it  is  clear  that  it  is  one  of  the  elements  of  the  plaintiff's 
cause  of  action,  and  should  have  been  alleged  in  the  petition. 
"A  plaintiff  can  recover  only  on  the  cause  of  action  stated  in  his 
petition.  It  is  not  the  province  of  a  reply  to  introduce  new 
causes  of  action.  This  can  be  done  only  by  amendment  to  the 
petition."  Maxw.  PI.  &  Pr.  108;  Durbin  v.  Fisk,  16  Ohio  St. 
534.  If  the  judgment  has  been  paid,  it  should  have  been  so  al- 
leged in  the  petition,  so  that  the  proper  issue  could  have  been 
formed  upon  that  question,  and  tried  as  other  issues  tendered  by 
the  plaintiff  in  an  action  are  tried.  This  not  being  done,  there 
was  no  error  in  the  ruling  of  the  court.    *    *    * 

Judgment  affirmed. 


Sec.  3.]  Departure.  677 

TRAINOR  V.  WORMAN. 
Supreme  Court  of  Minnesota,  1885.    34  Minn.  237. 

GiLFiLLAN,  C.  J.  *  *  •  This  being  so,  there  is,  so  far  as 
the  allegations  in  the  reply  may  be  claimed  to  help  the  com- 
plaint, a  clear  ease  of  departure  in  the  pleadings;  for  the 
complaint  alleges  and  relies  on  a  complete  performance  of  the 
contract  according  to  its  terras,  while  the  reply  admits  a  failure 
to  perform  as  to  time,  and  relies  on  new  matter  therein  alleged 
as  an  excuse  for  such  failure.  There  is  a  departure  when  a 
party  quits  or  departs  from  the  ease  or  defense  which  he  first 
made,  and  has  recourse  to  another.  1  Chit.  PI.  674;  Gould  PI. 
e.  8,  65,  66,  72;  Warren  v.  Powers,  5  Conn.  373;  Larned  v. 
Bruce,  6  Mass.  57;  Estes  v.  Farnham,  11  Minn.  312,  (423).  A 
test  of  departure  suggested  in  the  last  case  is,  could  evidence  of 
the  facts  alleged  in  the  reply  be  received  under  the  allegations 
of  the  complaint?  If  not,  then  there  is  a  departure.  It  needs 
only  a  statement  of  it  to  show  that  an  allegation  of  full  perform- 
ance will  not  admit  proof  of  an  excuse  for  non-performance. 

The  plaintiff  should  have  drawn  his  complaint  according  to 
the  facts;  or,  if  he  did  not  so  draw  it  in  the  first  instance,  he 
ought  to  have  made  it  conform  to  the  facts  as  soon  as  he  received 
the  answer  apprising  him  that  he  would  be  required  to  prove 
his  case  as  he  alleged  it.  The  defendant  raised  the  objection 
properly  by  his  request  for  a  charge,  in  effect,  that  plaintiff 
could  recover  only  upon  proof  of  performance  as  alleged  in  the 
complaint.  But  the  objection  to  the  plaintiff's  evidence,  offered 
after  defendant  rested,  of  an  excuse  for  non-performance,  was 
not  well  taken.  For,  though  plaintiff  could  not  plead  in  his 
reply  and  prove  such  excuse  as  part  of  his  cause  of  action,  he 
could  both  plead  and  prove  it  as  a  defense  to  defendant's  coun- 
terclaim. That  is,  as  the  pleadings  stood,  though  plaintiff  could 
not  have  the  benefit  of  that  evidence  as  a  ground  of  recovery  by 
himself,  he  could  have  the  benefit  of  it  so  far  as  to  prevent  a 
recovery  by  defendant  on  his  counterclaim. 

Judgment  reversed. 


TABLE  OF  CASES 


[REFEBENCES   ABE   TO   PAGES] 


Abraham,  De  Wolf  v.,   151   N.  T. 

186:     394. 
Accident    Ass'n,    Jones    v.,    92    la. 

652:      322. 
Allen,    Caddell   v.,    99    N.    C.    542: 

95. 
Allen  V.  C.  &  N.  Ey.  Co.,  94  Wis. 

93:      142. 
Allen,    Stratton    v.,    7    Minn.    502: 

464. 
Allen,    Wheeler    v.,   51    N.    Y.    37: 

162. 
American    Trading    Co.    v.    Gott- 

stein,  123  la.  267:     443. 
Anderson    v.    Case,    28    Wis.    505: 

52. 
Anderson,  Haydon   v.,   17   Ta.   158: 

446. 
Anderson,  Jaccard  v.,  32  Mo.  188  s 

283. 
Anderson    v.    Reardon,    46    Minn. 

175:     133. 
Arms  Co.,  Oscanyan  v.,   103   U.  S. 

261:     547. 
Arnoux,  Tooker  v.,   76  N.  Y.  397: 

317. 
Arthur   v.    Richards,   48    Mo.    298: 

448. 
Asseler,   Goulet  v.,  22  N.  Y.  225: 

49. 
Astin  V.  C.  M.  &  St.  P.  Ry.  Co., 

143  Wis.  477:     409. 
Astor  Ins.  Co.,  Bidwell  v.,  16  N.  Y. 

263:     36n. 
A.   &   N.   R.   R.   Co.,   Harden   v.,   4 

Neb.  521:     488n. 
Avery,     Harris    v.,    5    Kan.     146: 

388. 


Bailey    v.    Mosher,    63    Fed.    488: 

62. 
Bailey  v.  Winn,  101  Mo.  649:     141. 
Bald^vin,    Fulton    Ins.    Co.,    v.,    37 

N.  Y.  648:     457. 
Bank    of    Mo.,    Childs    v.,    17    Mo. 

213:     418. 
Bank  of  Utica,  Cahoon  v.,  7  N.  Y. 

486:     27. 
Bannister,     Campbell    v.,     79    Ky. 

205:     672. 
Barber,  Easterly  v.,  66  N.  Y.  433: 

247. 
Barden,  Weaver  v.,  49  N.  Y.  286: 

553. 
Barker  v.  H.  &  St.  J.  R.  R.  Co.,  91 

Mo.  86:     347. 
Barker  v.  Wheeler,   62    Neb.   110: 

540. 
Barlow  v.  Scott,  24  N.  Y.  40:     85. 
Barnes   v.   Quigley,   59   N.  Y.   265: 

55. 
Barrett,  Hill  v.,  14  B.  Monroe,  83: 

309. 
Barrow,   Shields   v.,   17   How.   130: 

241. 
Bartholomew  Agr'l  Society,  Beat- 
tie  v.,  70  Ind.  91:     501. 
Bass    V.    Comstock,    38    N.    Y.    21: 

449. 
Bass   Foundry   Co.,   Griffin   v.,   135 

Ala.  490:     333. 
Bates  V.  Rosekrans,  37  N.  Y.  409: 

628. 
Baxter   v.   St.  L.   Transit   Co.,   198 

Mo.  1:     516. 
Beattie  v.  Bartholomew  Agr'l.  So- 
ciety, 76  Ind.  91:     501. 


679 


680 


TABLE   OF   CASES. 


[references  are  to  pages] 


Beck   V.   Beck,    43    N.    J.    Eq.    39: 

590. 
Beck,   Beck   v.,   43    N.   J,   Eq.   39: 

590. 
Beers,  Burr  v.,  24  N.  Y.  178:     148. 
Belfy,    Burritt    v.,    47    Conn.    323: 

10. 
Beloit     Straw    Board     Co.,     Whet- 
stone v.,  76  Wis.  613:     33. 
Benoist  v.  Murrin  48  Mo.  48:     110. 
Benz  V.  Wiedenhoeft,  83  Wis.  397: 

362. 
Bernicia    Agr'l    Works    v.    Creigh- 

ton,  21  Or.  495:     670. 
Berry  v.  Dole,  87  Minn.  471:     356. 
Bervviud,   France    &    Canada   S.    S. 

Co.  v.,  229  N.  Y.  89:     415. 
Bidwell  V.  Astor  Ins,  Co.,  16  N.  Y, 

263:        36n. 
Blair,  Cooper  v.,  14  Or.  255:     232. 
Bodley,  Van  Dorn  v.,  38  Ind.  402: 

674. 
Boomer,    Gates    v.,    17    Wis.    470: 

203. 
Borden    v.    Gilbert,    13    Wis.    670: 

249. 
Bort  V.  Yaw,  46  la.  323:      185. 
Bowen  v.  Emerson,  3  Or.  452:     336. 
Boyce  v.  Christy,  47  Mo.  70:     8. 
Branham,    Caples   v.,   20    Mo.   244: 

313. 
Breitung     v.    Packard,     260     Fed. 

895:     594n. 
Bridges    v.    Paige,    13    Cal.    640: 

526. 
Brown    v,    Curtis,    128    Cal.    193: 

514. 
Brown,   Leroux   v.,   12   C.    B.    801: 

533n. 
Brown,  Eush  v.,  101  Mo.  586:     91. 
Bruheim  v.  Stratton,  145  Wis.  271: 

78. 
Buffalo    Water    Co.,    Wall    v.,    18 

N.  Y.  119:     485. 
Buhne    v.    Corbett,    43    Cal.    264: 

649. 
Bull,  McKyring  v.,  16  N.   Y.  297: 

519. 


Burr  V.  Beers,  24  N.  Y.  178:     148. 
Burritt    v.    Belfy,    47    Conn.    323: 

10. 
Buttermere   v.   Hayes,  5   M.   &   W. 

456:     532. 


Cable  V.  St.  L.  M.  Ey.  &  D.  Co., 

21  Mo.  133:     127. 
Caddell  v.  Allen,  99  N.  C.  542:     95. 
Cahoon  v.   Bk.   of   Utica,   7   N.   Y. 

486:     27. 
Caldwell,    Garth    v.,    72    Mo.    622: 

465. 
Caldwell,    School    District    v.,     16 

Neb.  68:     675. 
California    Pk.    Co.    v,    Kelly,    228 

N.  Y.  49:     288n. 
Callen,  Eizer  v.,  27  Kan.  339:     177. 
Campbell  v.  Bannister,  79  Ky.  205: 

672. 
(^anfield    v.    Tobias,    21    Cal.    349: 

474. 
Caples    V.   Branham,    20    Mo.    244; 

313. 
Carey,  Dewey  v.,  60  Mo.  234:     170. 
Carman    v.    Plass,    23    N.    Y.    286: 

223. 
Case,    Anderson    v.,    28    Wis.    505: 

52. 
Cassidy    v.    First    Nat'l    Bk.,    30 

Minn.    86:      134. 
Chafee,    Slutts    v.,    48    Wis.    617: 

221. 

C.  M.   &   St.  P.  Ey,   Co.,  Astin  v., 

143  Wis.  477:     409. 
C.  M.  &  St.  P.   Ey.  Co.,   Clark  v., 

28  Minn.  69:     304. 
C.  M.  &  St.  P.  Ey.  Co.,  Waterman 

V,,  61  Wis.  464:     154. 
C.  &  N.  Ey.  Co.,  Allen  v.,  94  Wis. 

93:     142. 

C.  &  N.  Ey.  Co.,  Ewen  v.,  38  Wis. 

613:     497. 
C.  &  N.  Ey.  Co.  V.  McKeigue,  126 

Wis.  574:     614. 


TABLE  OF  CASES. 


681 


[REFEEENCES  ABE  TO  PAGES] 

C.  &  N.  Ey.  Co.,  Potter  v.,  20  Wis. 

533:     342. 
C.  E.  I.  &  P.  Ey.  Co.,  Field  v.,  76 

Mo.  614:      345. 
Childs  V.  Bk.  of  Mo.,  17  Mo.  213: 

418. 
Childs,   Voorhis   v.,   17  N.   Y.   354: 

215. 
Chinn  v.  Trustees,  32  Ohio  St.  236: 

117. 
Chrisman,    Kingsland    v.,    28    Mo. 

App.  308:     136. 
Christy,  Boyce   v.,  47   Mo.   70:      8. 
Chouteau,  Davis  v.,  32  Minn.  548: 

508. 
City    of    Buffalo,    Heywood    v.,    14 

N.  Y.  534:     107. 
City  of  Columbia,   Hoffman  v.,   76 

Mo.  App.  553:      144. 
City  of  Eau  Claire,  Schiffer  v.,  51 

Wis.  385:     187. 
City    of    St.    Paul,    Griggs    v.,    9 

Minn.  246:     298,  434. 
Clark  V.  C.  M.  &  St.  P.  Ey.  Co.,  28 

Minn.  69:      304. 
Clark    V.    Finnell,    16    B.    Monroe, 

329:     471. 
Clark,   Gardner  v.,   21   N.   Y.   399: 

641. 
Cobb  V.  Smith,  23  Wis.  261:     377. 
Colby,   Dodge   v.,    108   N.   Y.   435: 

441,  454. 
Colgate,  Jacobus  v.,  217  N.  Y.  235: 

425n. 
Collart  V.  Fisk,  38  Wis.  238:     479. 
Comm'rs  of  Barton  Co.  v.  Plumb, 

20  Kan.  147:      12,  424. 
Comstock,   Bass   v.,    38    N.   Y.   21: 

449. 
Consol.  Coal  Co.,  Duffy  v.,  147  la. 

225:     574. 
Conway  v.  Eeed,  66  Mo.  346:     357. 
Conway,   Sparling  v.,   75   Mo.  510: 

563. 
Cook  V.  Tallman,  40  la.  133:     434. 
Cooper  V.  Blair,  14  Or.  255:     232. 
Corbett,    Buhne    v.,    43    Cal.    264: 

649. 


Corby  v.  Weddle,  57  Mo.  452:     530. 
Corr    V.    Sun    Printing    Ass'n,    177 

N.  Y.  131:     364. 
Corry  v.  Gaynor,  21  Ohio  St.  277: 

382. 
Corwine,   Gartner    v.,   57    Ohio    St. 

206:     67. 
Coulter,  Lewis  v.,  10  Ohio  St.  452: 

473. 
Gov.     Mut'l    Life     Ins.     Co.,     Mc- 

Comas  v.,  56  Mo.  573:     165. 
Coward,    Felger    v.,    35    Cal.    650: 

160. 
Cowham,  Lombard  v.,  34  Wis.  486: 

605. 
Craft    Eefrig.    Co.    v.    Quinnepiac 

Brewing  Co.,  63  Conn.  551:     397. 
Crary  v.  Goodman,   12  N.  Y.  266: 

594. 
Cratt,    Monette    v.,    7    Minn.    234: 

456. 
Creighton,    Bernicia   Agr'l.   Works 

v.,  21  Or.  495:     670. 
Cullen,    Eeilly    v.,    159    Mo.    322: 

286n. 
Cunningham    v.    Lyness,    22    Wis. 

245:      568. 
Curtis,    Brown    v.,    128    Cal.    193: 

514. 
Curtis  V.  Moore,  15  Wis.  134:     421. 
Gushing  v.  Seymour,  30  Minn.  301: 

630. 


Darby  v.  W.  K.  &  T.  E.  E.  Co.,  156 

Mo.  391:      21n. 
Dnrrah   v,  Lightfoot,   15   Mo.   187: 

432. 
David,   Gilbert   v.,   235   U.   S.   561; 

513n. 
Davis,  Chouteau  v.,  32  Minn.  548: 

508. 
Davis  V.  Houghtelin,  33  Neb.  582. 

307. 
Dean  v.  St.  P.  &  D.  E.  E.  Co.,  53 

Minn.  504:     171. 
Dean,  Smith  v.,  19  Mo.  63:     271. 


682 


TABLE   OF    CASES. 


[refebences  ake  to  pages] 

Dealing,    State    v.,    244    Mo.    25: 

263. 
De   Wolf   V.   Abraham,    151   N.   Y. 

186:     394. 
Denton,  Freer    v.,    61    N.   Y.   492: 

60. 
Depuy    V.    Strong,    3    Keyes    603: 

180. 
Derby    v.    Gallop,    5    Minn.    119: 

644. 
Dewey  v.  Carey,  60  Mo.  234:     170. 
Dietrich    v.    Koch,    35    Wia.    618: 

639. 
Dobson  V.  Pearce,   12   N.   Y.   156: 

598n. 
Dodge    V.    Colby,    108    N.    Y.    435: 

441,  454. 
Dole,  Berry  v.,  87  Minn.  471:     356. 
Dorr    V.    Munsell,    13    John.    430: 

576. 
Douglas,    Ford    v.,    5    How.    143: 

578. 
Dousman,     Winslow     v.,     18     Wis. 

457:     251. 
Duffy  V.  Consol.  Coal  Co.,  147  la. 

225:     574. 
Duhart,    Eogers    v.,    97    Cal.    500: 

69. 
Duncan,   Walker   v.,   68   Wis.   624: 

48. 
Dutcher  v.  Dutcher,  39  Wis.   651: 

506. 
Dutcher,  Dutcher  v.,  39  Wis.  657: 
506. 

E 
Easterly  v.  Barber,  66  N.  Y.  433  s 

247. 
Edwards,  Pettibone  v.,  15  Wis.  95: 

199. 
Electric    Co.    v.     Mittenthal,     194 

N.  Y.  473:     493. 
Emerson,    Bowen    v.,    3    Or.    452: 

336. 
Emery  v.  Pease,  20  N.  Y.  62:     82. 
Everson,    Simonds    v.,    124    N.    Y. 

319:     237. 
Ewen  V.  C.  &  N.  Ky.  Co.,  38  Wis. 
613:     497. 


Ewing,    Jones    v.,    22    Minn.    157: 

316. 
Eyerman    v.    Mt.    Sinai    Ass'n,    61 

Mo.  489:     44. 


Faesi  v.  Goetz,  15  Wis.  231:     420. 
Fairbanks  v.  Isham,  16  Wis.  118: 

285. 
Farron  v.  Sherwood,  17  N.  Y.  227: 

41. 
Farthing,   White's   Bk,   v.,   101   N. 

Y.  344:     205. 
Felger    v.    Coward,    35    Cal.    650: 

160. 
Fidelity     Co.,     McAlpine     v.,     134 

Minn.  192:     660. 
Field  V.  C.  R.  I.  &  P.  R.  R.  Co.,  76 

Mo.  614:     345. 
Finley  v.  Quirk,  9  Minn.  194:     542. 
Finnell,    Clark    v.,    16    B.    Monroe 

329:     471. 
First    Nat'l.    Bk.,    Cassidy    v.,    30 

Minn.  86:     134. 
Fisk,  Collart  v.,  38  Wis.  238:     479. 
Fletcher,  Porter  v.,  25  Minn.  493: 

183,  452. 
Flynn,    Phillips    v.,    71    Mo.    424: 

227. 
Fogle   V.  Schaeffer,   23   Minn.  304: 

499. 
Forbes,    Jeffers    v.,    28    Kan.    174: 

207. 
Ford  V.  Douglas,  5  How.  143:     578. 
Forepaugh,      Trowbridge      v.,      14 

Minn.  133:     231. 
Foster,  I.  B.  &  W.  Ry.  Co.  v.,  107 

Ind.  430:     467. 
France  &  Canada  S.  S.  Co.  v.  Ber- 

wind,  229  N.  Y.  89:     415. 
Freeman,    Stern   v.,   4    Mete.    309: 

665. 
Freer    v.    Denton,    61    N.    Y.    492: 

60. 
Fulton    Fire   Ins.    Co.    v.    Baldwin, 

37  N.  Y.  648:     457. 


TABLE  OP   CASES. 


683 


Gallop,    Derby    v.,    5    Minn.    119: 

644. 
Gardner   v.   Clark,   21    N.  Y.   399: 

641. 
Garesche,  Lackland  v.,  56  Mo.  267: 

114. 
Garth    v.    Caldwell,    72    Mo.    622: 

465. 
Gartner    v.    Corwine,    57    Ohio    St. 

206:     67. 
Gates    V.    Boomer,    17    Wis.    470. 

203. 
Gaynor,  Corry  v.,  21  Ohio  St.  277: 

382. 
Geo.    C.    Cribb    Co.,    South    Bend 

Plow  Co.  v.,  105  Wis.  443:      37. 
Germantown    Ins.     Co.,     Schaetzel 

v.,  22  Wis.  412:     491. 
Gertler  v.  Linscott,  26  Minn.  82: 

422. 
Gilbert,   Borden    v.,    13    Wis.    670: 

249. 
Gilbert  v.   David,  235   U.   S.   561: 

513n. 
Gill  V.   Pelkey,   54   Ohio    St.    348: 

609n. 
Gilman,  Kingsley  v.,  12  Minn.  515: 

476. 
Gluckauf,    Lane    v.,    28    Cal.    288: 

376. 
Goar,   Goodnight   v.,   30   Ind.   418: 

173. 
Goetz,  Faesi  v.,  15  Wis.  231:     420. 
Goodman,  Crary  v.,  12  N.  Y.  266: 

594. 
Goodnight    v.    Goar,    30    Ind.    418: 

173. 

Gosnell,    Rogers    v.,    51    Mo.    466: 

153n. 
Gottstein,    American    Trading    Co. 

v.,  123  la.  267:     443. 
Goulet    V.    Aseler,    22    N.    Y.    225: 

49. 
Grand    Island    S.    &    L.    Ass'u    v. 

Moore,  40  Neb.  686:     384. 


[ekfebences  aee  to  pages] 

Grannis    v.    Hooker,    29    Wis.    65: 

338. 
Green    v.    Republic    Fire    Ins.    Co., 

84  N.  Y.  572:     131. 
Green    Bay    Canal    Co.,    McArthur 

v.,  34  Wis.  139:     129. 
Greenberg    v.    Whitcomb    Lumber 

Co.,  90  Wis.  225:     239. 
Greentree  v.  Rosenstock,  61  N.  Y. 

583:     57. 
Griffin    v.   Bass    Foundry   Co.,    135 

Ala.  490:     333. 
Griffing,    Leffingwell     v.,     31     Cal. 

232:     490. 
Griggs  V.  City  of  St.  Paul,  9  Minn. 

246:     298,  434. 
Gumb  V.  Twenty-third  St.  Ry.  Co., 

114  N.  Y.  411:     360. 
Gunn    V.    Madigan,    28    Wis.    158: 

600. 


H 


Ilagerty,  Langton  v.,  35  Wis.  150: 

563. 
Ilalferty  v.  Wilmering,   112   U.   S. 

713:     503. 
Hallock,  Miller  v.,  9  Col.  551:     45. 
Hamilton,  Kirk   v.,  102   U.   S.   68: 

583. 
Hamilton    v.    Mclndoo,    81    Minn. 

324:     459. 
Hanford,   Union   Life   Ins.    Co.   v., 

143   U.   S.    187:      149n. 
H.  &  St.  J.  R.  R.  Co.,  Barker  v., 

91  Mo.  86:     347. 
H.  &  St.  J.  R.  R.  Co.,  Van  Hoosier 

v.,  70  Mo.  145:     18. 

Hanover  Ins.  Co.,  Walrath  v.,  216 

N.  Y.  220:      333n. 
Harden   v.   A.   &   N.   B.   R.   Co.,  4 

Neb.  521:     488n. 
Harris  v.  Avery,  5  Kan.  146:     388. 
Harte,  South  Milwaukee  Co.  v.,  95 

Wis.  592:      654. 

Harvey,   Koningsberger   v.,   12   Or. 
256:     567n. 


684 


TABLE   OF    CASES. 


[references  are  to  pages] 


Hayden  v.  Anderson,   17   la.   158: 

446. 
Hayes,  Buttermere  v.,  5  M.  &  W. 

456:     532. 
Hayward,  Ritchie  v.,   71   Mo.  560: 

637. 
Heinrichoffen,  Pier  v.,  52  Mo.  333: 

328. 
Hellams   v.    Switzer,   24   S.   C.   39: 

190. 
Henkel,  Schaefer  v.,  75  N.  Y.  378: 

151. 
Hewitt,   Pehrson    v.,    79    Cal.    598: 

290. 
Heywood  v.  City  of  Buffalo,  14  N. 

Y.  534:     107. 
Hiles    V.    Johnson,    67    Wis.    517: 

451. 
Hill  V.  Barrett,  14  B.  Monroe  83: 

309. 
Hillman  v.  Newington,  57  Cal.  56: 

261. 
Hoeffner,    State    v.,   124    Mo.   488: 

118. 
Hoffman   v.   City   of   Columbia,   76 

Mo.  App.  553:      144. 
Home    Ins.    Co.,    Troy    Automobile 

Exch.  v.,  221  N.  Y.  58:     462. 
Hooker,    Grannis    v.,    29    Wis.    65: 

338. 
Hopkins    v.   Lane,    87    N.   Y.    501: 

636. 
Houghtelin,  Davis  v.,  33  Neb.  582: 

307. 
Hudson    V.    Wabash    Ry.    Co.,    101 

Mo.  13:     570. 
Hueston   v.   Mississippi  Boom   Co., 

76  Minn.  251:     20. 
Hurlburt,  StilweU  v.,  18  N.  Y.  374: 
147. 


111.  Surety  Co.,  Midland  Terra 
Cotta  Co.  v.,  163  Wis.  190:     404. 

Imperial  Shale  Brick  Co.  v.  Jew- 
ett,  169  N.  Y.  143:     35. 


I.  B.  &  W.  Ry.  Co.  V.  Foster,  107 

Ind.  430:     467. 
Isham,  Fairbanks  v.,  16  Wis.  118: 

285. 


Jaccord  v.  Anderson,  32  Mo.  188: 

283. 
Jackson,  Sheridan  v.,  72  N.  Y.  270: 

279. 
Jackson  v.  Strong,  222  N.  Y.  149: 

98. 
Jacobus  V.  Colgate,  217  N.  Y.  235: 

425n. 
Jeffers    v.    Forbes,    28    Kan.    174: 

207. 
Jewett,   Imperial   Shale   Brick   Co. 

v.,  169  N.  Y.  143:     35. 
Jewett,  McHenry  v.,  90  N.  Y.  58: 

367. 
Joel,    Reubens    v.,    13    N.    Y.    448: 

40n. 
Johnson,    Hiles    v.,    67    Wis.    517: 

451. 
Johnson  v.  Northwestern  Ins.  Co., 

94  Wis.  117:     321. 
Johnson  v.  Oswald,  38  Minn.  550: 

558. 
Jones    V.    Accident    Ass'n,    92    la. 

652:      322. 
Jones    V.    Ewing,    22    Minn.    157: 

316. 
Joseph  Desert  Lumber  Co.  v.  Wad- 
leigh,  103  Wis.  318:     73. 
K 
Kabrich  v.  State  Ins.  Co.,  48  Mo. 

App.  393:     31. 
Kamiuski    v.    Tudor    Iron    Works, 

167  Mo.  462:     573. 
Kelly,    California   Packing   Co.   v., 

228  N.  Y.  49:      288n. 
Kenton,   Newham  v.,   79   Mo.   382: 

369. 
Kerr  v.  Steman,  72  la.  241:     289. 
Kerr   Salt   Co.,   Strobel   v.,   164   N. 
Y.  303:     212. 


TABLE  OP  CASES. 


685 


Keyes  v.  Little  York  Gold  Co.,  53 

Cal.  724:     256. 
King  V.  Oregon  Short  Line,  6  Ida. 

306:      352. 
Kingsland    v.     Chrisman,    28    Mo. 

App.  308:     136. 
Kingsley  v.  Gilman,  12  Minn.  515: 

476. 
Kirk   V.   Hamilton,    102    U.    S.   G8: 

583. 
Kleinsorge,    Springer    v.,    83    Mo. 

152:     535. 
Knapp  Co.,  St.  Louis  v.,  104  U.  S. 

658:     366. 
Koch,    Dietrich    v.,    35    Wis.    618: 

639. 
Koningsberger   v.   Harvey,    12    Or. 

256:     567. 


Lackland  v.  Garesche,  56  Mo.  267: 

114. 
Lane    v.    Gluckauf,    28    Cal.    288: 

376. 
Lane,   Hopkins   v.,   87   N.   Y.   501: 

636. 
Langton  v.  Hagerty,  35  Wis.   150: 

563. 
Lattin  v.  McCarty,  41  N.  Y.  107: 

29. 
Leach    v.    Rhodes,    49    Ind.     291: 

287. 
Leavenworth  L.  «&;  H.  Co.  v.  Wall- 
er, 65  Kan.  514:     656. 
Leffingwell  v.  Griffing,  31  Cal.  232 1 

490. 
Lent  V.  N.  Y.  &  M.  E.  R.  Co.,  130 

N.  Y.  504:     324. 
Leroux    v.    Brown,    12    C.    B.    801: 

533n. 
Lewis  V.  Coulter,  10  Ohio  St.  452: 

473. 
Lewis,  Roberts  v.,   144   U.  S.  653: 

511. 
Lightfoot,  Darrah  v.,  15  Mo.   187: 

432. 
Lilly  V.  Tobein,  103  Mo.  477:     201. 


[refejjencks  are  to  pages] 

Linscott,  Gertler  v.,  26  Minn.  82: 

422. 
Linton   v.   Unexcelled   Fire   Works 

Co.,  128  N.  Y.  672:     35n. 
Little  V.  Reed,  141  Mo.  242:     555. 
Little  York  Gold  Co.,  Keyes  v.,  53 

Cal.  724:     256. 
Livingston,    Vassear    v.,    13    N.   Y. 

•248:      621. 
Lock    V.    Moulton,     108     Cal.    49: 

611. 
Loeb   V.  Weis,  64  Ind.   285:      496. 
Loeb    V.    Sup.    Lodge,    198    N.    Y. 

180:     90n. 
Lombard  v.  Cowham,  34  Wis.  486: 

605. 
L.  &  N.  R.  R.  Co.  V.  Wolfe,  80  Ky. 

82:     301. 
Lucas    V.    Lucas,    69    Mass.    136: 

104. 
Lucas,    Lucas    v.,    69    Mass.    136: 

104. 
Lyness,    Cunningham    v.,    22    Wis. 

245:      568. 

M 
McAlpine     v.     Fidelity     Co.,     134 

Minn.   192:      660. 
McArtluir  v.  Green  Bay  Canal  Co., 

34  Wis.  139:      129. 
McCarty,  Lattin  v.,  41  N.  Y.  107: 

29. 
McCaughey    v.    Schuette,    117    Cal. 

223:     281. 
McComas   v.  Cov.   Mut'l  Life   Ins. 

Co.,  56  Mo.  573:      165. 
McCormick    Co.,    Merriman    v.,    86 

Wis.  142:     424. 


McDowell,  Scofield  v.,  47  la.   129: 

436. 
MeHenry  v.  Jewett,  90  N.  Y.  58: 

367. 
McHugh  V.  St.  Louis  Transit   Co., 

190  Mo.  85:     426. 
Mclndoo,    Hamilton    v.,    81    Minn. 

324:     459. 
Melsaac    v.    McMurray,    77    N.    H. 

466:     617. 


686 


TABLE   OF   CASES. 


McKeigue,  C.  &  N.  Ry.  Co.  v.,  126 

Wis.  574:     614. 
McKenzie  v.  Mathews,  59  Mo.  99: 

438. 
McKyring  v.  Bull,   16   N.   Y.  297: 

519. 
McMurray,  Mclsaac  v.,  77   N.   H. 

466:     617. 
Madigan,    Gunn    v.,    28    Wis.    158: 

600. 
Mansfield,     Oliphint     v.,     36    Ark. 

191:     254. 
Mast,    Mowery    v.,    9    Neb.    447: 

225. 
Mathews,  McKenzie  v.,  59  Mo.  99: 

438. 
Matthews  v.  Matthews,  154  N.  Y. 

288:     537. 
Matthews,  Matthews  v.,  154  N.  Y. 

288:     537. 
Mauro,    Walker    v.,    18    Mo.    564: 

125. 
Means,  Richardson  v.,  22  Mo.  495: 

158. 
Mechanics  Sav.  Bk.,  Saperstein  v., 

228  N.  Y.  257:      lOOn. 
Merchants  Fire  Ins.  Co.,  Tayloe  v., 

9  How.  390:     36n. 
Merrinian    v.    MeCormick    Co.,    80 

Wis.  142:     424. 
Merry  Realty   Co.  v.  Shamokin  R. 

E.  Co.,  230  N.  Y.  316:     101. 
Michael,  Nichols  v.,  23  N.  Y.  264: 

228. 
Midland    Terra    Cotta    Co.    v.    111. 

Surety  Co.,   163   Wis.   190:      404. 
Millard  v.  M.  K.  &  T.  Ry.  Co.,  86 

N.  Y.  441:     16. 
Miller  v.  Hallock,  9  Col.  551:     45. 
Milwaukee,  Rogers  v.,  13  Wis.  610: 

295n. 
Mississippi  Boom  Co.,  Hueston  v., 

76  Minn.  251:     20. 
M.  K.  &  T.  Ry.  Co.,  Millard  v.,  86 

N.  Y.  441:     16. 
M.  K.  &  T.  Ry.  Co.,  Darby  v.,  156 

Mo.  391:      21n. 


[references  are  to  pages] 

Mittenthal,  Electric  Co.  v.,  194  N. 

Y.  473:     493. 
Monotte    v.    Cratt,    7    Minn.    234: 

456. 
Montgomery,  Rhine  v.,  50  Mo.  566: 

652. 
Moore,    Curtis    v.,    15    Wis.    134: 

421. 
Moore,   G.  I.  S.  &  L.  Ass'n  v.,  40 

Neb.  686:     384. 
Morgan,    Webb    v.,    14    Mo.    428: 

123. 
Morse,   Scott   v.,  54  la.  732:      529. 
Mosher,    Bailey    v.,    63    Fed.    488: 

62. 
Moulton,    Lock    v.,    108    Cal.    49: 

611. 
Mt.   Sinai   Ass'n,   Eyerman   v.,    61 

Mo.  489:     44. 
Mowery  v.  Mast,  9  Neb.  447:     225. 
Muusell,    Dorr    v.,    13    John.    430: 

576. 
Murrin,    Benoist    v.,    48    Mo.    48: 

110. 


N 


Nat'l  S.  S.  Co.,  N.  Y.  News  Co., 

v.,  148  N.  Y.  39:     341. 
Newham   v.   Kenton,    79    Mo.   382'. 

369. 
Newington,  Hillman  v.,  57  Cal.  56: 

261. 
New  York  Ice  Co.  v.  Northwestern 

Ins.  Co.,  23  N.  Y.  357:     88. 
New  York   &   M.   R.   R.   Co.,   Lent 

v.,  130  N.  Y.  504:     324. 
New  York  News  Co.  v.  Nat'l  S.  S. 

Co.,  148  N.  Y.  39:     341. 
Niagara   Fire   Ins.    Co.,   Winne   v., 

91  N.  Y.  185:      180. 
Nichols  V.  Michael,  23  N.  Y.  264: 

228. 
Nichols   V.   Nichols,    134   Mo.    187: 

293. 
Nichols,   Nichols   v.,   134   Mo.   187: 

293. 


TABLE  OF  CASES. 


687 


[rEFEBENCES   ABE  TO  PAGES] 


Nichols,  Title  Guaranty  Co.  v.,  224 

U.  S.  346:     551. 
Nichols   V.   Winfrey,    79   Mo.    544: 

566. 
Nolan,  Western  Ky.  Co.  v.,  48  N. 

Y.  513:      163. 
North    Mo.    E.   E.    Co.,    Thompson 

v.,  51  Mo.  190:     344n. 
Northwestern  Ins.  Co.,  Johnson  v., 

94  Wis.  117:     321. 
Northwestern   Ins.   Co.,   N.   Y.   Ice 

Co.  v.,  23  N.  Y.  357:     88. 


O 


Omaha    &    E.    V.    E.    E.    Co.    v. 

Wright,  47  Neb.  886:     302. 
O.   K.   C.   &   E.   E.   E.   Co.,   Einard 

v.,  164  Mo.   270:      406. 
Oliphint  V.  Mansfield,  36  Ark.  191: 

254. 
Oppold,  Schwartz  v.,  74  N.  Y.  307: 

531. 
Oregon  Short  Line  E.  E.  Co.,  King 

v.,  6  Ida.  306:      352. 
Oscanyan  v.   Arms   Co.,   103   U.   S. 

261:     547. 
Oswald,  Johnson  v.,  38  Minn.  550: 

558. 


Packard,    Breitung    v.,    260    Fed. 

895:      594n. 
Paige,    Bridges    v.,    13    Cal.    640: 

526. 
Pardine,  Pastene  v.,  135  Cal.  431: 

539. 

Pastene  v.  Pardini,   135   Cal.  431: 
539. 

Payne   v.   Treadwell,   16   Cal.   220: 
273. 

Pearce,   Dobson  v.,   12   N.   Y.   150: 

598. 
Pease,  Emery  v.,  20  N.  Y.  62:     82. 

Pehrson    v,    Hewitt,    79    Cal.    598: 
290, 


Pelkey,   Gill   v.,   54   Ohio   St.   348: 

609n. 
Pensenneau  v.  Pensenneau,  22  Mo. 

27:     374. 
Pensenneau,  Pensenneau  v.,  22  Mo. 

27:     374. 
Pettibone  v.  Edwards,  15  Wis.  95: 

199. 
Phillips    V,    Flynn,     71    Mo.    424: 

227. 
Phister,   Tennant   v.,  45   Cal.   270: 

453. 
Pier  V.  Heinrichoffen,  52  Mo.  333: 

328. 
Plass,    Carman   v.,    23    N.   Y.    286: 

223. 
Plumb,  Comm'rs.  of  Barton  Co.  v., 

20  Kan.  147:     12,  424. 
Porter  v.   Fletcher,  25  Minn.   493: 

183,  452. 
Porter,    Wicde    v.,    22    Minn.    429: 

327. 
Potter  V.  C.  &  N.  W.  Ey.  Co.,  20 

Wis.   533:      342. 


Quigley,  Barnes  v.,  59  N.  T.  265: 

55. 
Quinliven,    Ward   v.,   57   Mo.   425: 

597. 
Quinnepiac  Brewing  Co.,  Craft  Be- 

frig.  Co.  v.,  63   Conn.  551:     397. 
Quirk,    Finley    v.,    9    Minn.    194: 

542. 


Ecardon,    Anderson    v.,    46    Minn. 

175:      133. 
Eeed,  Conway  v.,  66  Mo.  346:     357. 
Eeed,  Little  v.,  141  Mo.  242:     555. 
Eeilly    v.    Cullen,     159     Mo.     322: 

286n. 
Eeilly  V.  Sicilian  Asphalt  Co.,  170 

N.  Y.  40:     22. 
Eemsen,   Eichtmeyer  v.,   38  N.   Y. 

206:     560. 


688 


TABLE   OP    CASES. 


[re:febences  ake  to  pages] 

Republic  Fire  Ins,   Co.,   Green  v., 

84  N.  Y.  572:     131. 
Eesch  V.  Senn,  31  Wis.  138:     625. 
Eeubens    v.    Joel,    13    N.    Y.    448: 

40n. 
Ehine  v.  Montgomery,  50  Mo.  566: 

652. 
Ehodes,    Leach    v.,    49    Ind.    291: 

287. 
Eichards,   Arthur   v.,   48   Mo.   298: 

448. 
Eichardson  v.  Means,  22  Mo.  495: 

158. 
Ritchie   v.   Hayward,   71   Mo.  560: 

637. 
Eichter,  Schubert  v.,  92  Wis.  199: 

297. 
Eichtmeyer   v.    Eemsen,    38    N.    Y. 

206:     560. 
Einard  v.  O.  K.  C.  &  E.  E.  E.  Co., 

164   Mo.   270:      406. 
Eizer  v.  Callen,  27  Kan.  339:     177. 
Eoberts   v.   Lewis,   144   U.   S.   653: 

511. 
Rogers  v.  Duhart,  97  Cal.  500:     69. 
Rogers    v.    Gosnell,    51    Mo.    466: 

153n. 
Rogers  v.  Milwaukee,  13  Wis.  610. 

295n. 
Root,  Taylor  v.,  4  Keyes  335:     632. 
Rosekrans,  Bates  v.,  37  N.  Y.  409: 

628. 
Rosenstock,  Greentree  v.,  61  N.  Y. 

583:     57. 
Rotheram  Alum  Co.,  In  re.,  25  Cli. 

D.  103:      149n. 
Rush  V.  Brown,  101  Mo.  586:     91. 


S 


St.  Louis  V.  Knapp  Co.,   104  U.  S. 

658:      366. 
St.  Louis  Ry.   &   D.  Co.,   Cable   v., 

21  Mo.  133:     127. 
St.   Louis    Transit    Co.,   Baxter   v., 

198   Mo.  1:      516. 
St.  Louis  Transit  Co.,  McHugh  v., 

190  Mo.  5:      426. 


St.  P.  &  D.  E.  E.  Co.,  Dean  v.,  53 

Minn.  504:      171. 
Saperstein   v.    M.    &   F.    Sav.   Bk., 

228  N.  Y.  257:      lOOn. 
►Scarborough     v.     South,     18     Kan. 

399:     401. 
Schaefer  v.  Henkel,  75  N.  Y.  378: 

151. 
Schaeffer,  Fogle  v.,  23  Minn.  304: 

499. 
Schaetzel  v.  Germantown  Ins.  Co., 

22  Wis.  412:     491. 
School     District     v.     Caldwell,     16 

Neb.  68:     675. 
Schiffer    v.    City    Eau    Claire,    51 

Wis.  385:     187. 
Schuette,   McCaughey   v.,   117   Cal. 

223:     281. 
Schubert   v.  Eichter,  92  Wis.   199: 

297. 
Schwartz  v.  Oppold,  74  N.  Y.  307: 

531. 
Scofield  V.  McDowell,   47  la.   129: 

436. 
Scofield    V.    Whitelegge,    49   N.    Y. 

259:  276. 
Scott,  Barlow  v.,  24  N.  Y.  40:  85. 
Scott  V.  Morse,  54  la.  732:  529. 
Secor  V.  Sturgis,  16  N.  Y.  548:  3. 
Senn,  Eesch  v.,  31  Wis.  138:  625. 
Seymour,     Gushing    v.,     30     Minn. 

301:     630. 
Shamokin     &     Hollis     E.    E.     Co., 

Merry  Eealty  Co.,  v.,  230  N.  Y. 

316:      101. 
Sheridan  v.  Jackson,  72  N.  Y.  270: 

279. 
Sherwood,  Farron  v.,  17  N.  Y.  227: 

41. 
Shields    v.   Barrow,   17    How.    130: 

241. 
Sicilian  Asphalt  Co.,  Eeilly  v.,  170 

N.  Y.  40:     22. 
Simmons    v.    Everson,    124    N.    Y. 

319:     237. 
Slutts    V.    Chafee,    48     Wis.     617: 

221. 
Smith,  Cobb  v.,  23  Wis.  261:     377. 


TABLE  OP   CASES. 


689 


[EEFEBENCES   ABE   TO   PAGES] 

Smith   V.   Dean,    19   Mo.   63:      271 


Smith,    Scarborough    v,,    18    Kan. 

399:     401. 
Smith  V.  Smith,  67  Kan.  841:     386. 
Smith,    Smith    v.,    67    Kan.    841: 

386. 
South    Bend    Plow    Co.    v.    G.    C. 

Cribb  Co.,  105  Wis.  443:     37. 
South  Milwaukee  Co.  v.  Harte,  95 

Wis.  592:     654. 
Sparling  v.  Conway,   75   Mo.  510: 

563. 
Springer    v.    Kleinsorge,    83     Mo. 

152:     535. 
State    V.    Bearing,    244    Mo.    25: 

263. 
State    V.    Hoefifner,    124    Mo.    488: 

118. 
State    V.    Williams,    48    Mo.    210: 

668. 
State  Ins.  Co.,  Kabrich  v.,  48  Mo. 

App.  393:     31. 
Steman,  Kerr  v.,  72  la.  241:     289. 
Stern    v.    Freeman,    4    Mete.    309: 

665. 
Stidger,   Wilkins   v.,   22    Cal.    232: 

334. 
Stillwell  V.  Hurlburt,  18  N.  Y.  374: 

147. 
Stratton    v.    Allen,    7    Minn.    502: 

464. 
Stratton,     Bruheim     v.,     145     Wis. 

271:     78. 
Strobel  v.  Kerr  Salt  Co.,  164  N.  Y. 

303:     212. 
Strong,    Depuy    v.,    3    Keyes    603: 

180. 
Strong,  Jackson  v.,  222  N.  Y.  149: 

98. 
Sturgis,  Secor  v.,  16  N.  Y.  548:     3. 
Sun   Printing   Ass'n,   Corr   v.,   177 

N.  Y.  131:     364. 
Sup.    Lodge,    Loeb    v.,    198    N.    Y. 

180:     90n. 
Suydam,   Wiles   v.,   64   N.   Y.    173: 

390. 
Switzer,   Hellams   v.,   24   S.   C.   39: 

190. 


TJallman,  Cook  v.,  40  la.  133:     434. 
Talor    V.    Merchants    Ins.    Co.,    9 

How.  390:     36n. 
Taylor  v.  Root,  4  Keyes  335:     632. 
Tennant    v.   Phister,   45    Cal.   270: 

453. 
Thompson   v.   North   Mo.   Ey.   Co., 

51   Mo.  190:      344n. 
Title  Guaranty  Co.  v.  Nichols,  224 

U.  S.  346:     551. 
Tobein,    LiUy    v.,    103     Mo.    477: 

201. 
Tobias,   Canfield    v.,    21    Cal.    349: 

474. 
Tooker  v.  Arnoux,   76  N.   Y.   397: 

317. 
Trainor  v.  Warman,  34  Minn.  237. 

677. 
Treadwell,   Payne   v.,   16   Cal.   220: 

273. 
Trompen    v.   Yates,    66    Neb.    525: 

195. 
Trowbridge      v.      Forepaugh,       14 

Minn.  133:     231. 
Troy   Automobile    Exch.    v.    Home 

Ins.  Co.,  221  N.  Y.  58:     462. 
Trustees,    Chinn    v.,    32    Ohio    St. 

236:     117. 
Tudor    Iron    Works,    Kaminski    v., 

167  Mo.  462:     573. 
Twenty   Third   St.   Ey.   Co.,   Gumb 

v.,  114  N.  Y.  411:     360. 
Tysen,  Wayland  v.,  45  N.  Y.  281: 

482. 


V 


Unexcelled  Fire  Works  Co.,  Linton 
v.,  128   N.  Y.  672:     35n. 

Union  Life  Ins.  Co.  v.  Hanford, 
143  U.  S.  187:     149n. 


Van  Dorn  v.  Bodley,  38  Ind.  402: 

674. 
Van  Hoosier  v.  H.  &  St.  J.  Ey.  Co., 

70  Mo.  145:     18. 


690 


TABLE   OP   CASES. 


[KEFEBENCKS   ABE   TO   PAGES] 

Vassear    v.    Livingston,    13    N.    Y. 

248:     621, 
Voorhis   v.   Childs,   17   N.  Y.   354: 

215. 


W 


Wabash   Ey.    Co.,   Hudson   v.,    101 

Mo.  13:     570. 
Wadleigh,   Joseph    Desert    Lumber 

Co.  v.,  103  Wis.  318:     73. 
Walker   v.    Duncan,   68    Wis.    624: 

48. 
Walker    v.    Mauro,    18    Mo.    564: 

125. 
Wall  V.  Buffalo  Water  Co.,  18  N. 

Y.  119:     485. 
Waller,  Leavenworth  L.  &  H.  Co. 

v.,  65  Kan.   514:      656. 
Walrath   v.  Hanover  Ins.   Co.,  216 

N.  Y.  220:     333n. 
Ward    v.    Quinliven,    57    Mo.    425: 

597. 
Waterman  v.  C.  M.  &  St.  P.   Ry. 

Co.,  61  Wis.  464:     154. 
Wayland  v.  Tysen,  45   N.  Y.  281: 

482. 
Weaver  v.  Barden,  49  N.   Y.   286: 

553. 
Webb    V.    Morgan,     14     Mo.    428: 

123. 
Weddle,    Corby    v.,    57    Mo.    452: 

530. 
Weis,  Loeb   v.,   64  Ind.   285:      496. 
Wentworth,      Woodruff      v.,       133 

Mass.   309:      332. 
Western  Ry.  Co.  v.   Nolan,  48   N. 

Y.  513:     163. 
Wheeler    v.    Allen,    51    N.    Y.    37: 

162. 
Wheeler,  Barker  v.,  62  Neb.   110: 

540. 


Whetstone   v.   Beloit   Straw   Board 

Co.,  76  Wis.  613:     33. 
Whitcomb  Lumber   Co.,  Greenberg 

v.,  90  Wis.  225:     239. 
Whitelegge,   Scofield   v.,  49   N.   Y. 

259:     276. 
Whites  Bk.  v.  Farthing,  101  N.  Y. 

344:     205. 
Wiede    v.    Porter,    22    Minn.    429: 

327. 
Wiedenhoeft,  Benz  v.,  83  Wis.  397: 

302. 
Wiles    V.   Suydam,    64    N.   Y.    173: 

390. 
Wilkins    v.    Stidger,    22    Cal.    232: 

334. 
Williams,    State    v.,    48    Mo.    210: 

668. 
Wilmering,   Halferty  v.,  112   U.  S. 

713:     503. 
Winfrey,   Nichols   v.,   79   Mo.   544: 

566. 
Winn,    Bailey    v.,     101    Mo.    649: 

141. 
Winne  v.   Niagara  Ins.  Co.,  91   N. 

Y.  185:     180. 
Wiiislow  V.  Dousman,  18  Wis.  457: 

251. 
Wolfe  V.  L.  &  N.  R.  R.  Co.,  80  Ky. 

82:     301. 
Woodruff  V.  Weutworth,  133  Mass. 

309:      332. 
Wornian,  Trainor  v.,  34  Minn.  237: 

677. 
Wright,  Omaha  &  R.  V.  E.  R.  Co. 

v.,  47  Neb.  886:     302. 


Yates,   Trompen   v.,   66  Neb.  525: 

195. 
Yaw,  Bort  v.,  46  la.  323:     185. 


I 


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